University  of  California  •  Berkeley 


f 


OF    THE 

STATE  OF  CALIFORNIA 


THE  STOCKTON  &  VISALIA  RAILROAD  CO. 

Petitioner, 

vs. 

The  Common  Council  of  the  City  of  Stockton, 

Respondent. 


Brief  on  behalf  of  the  Southern  Pacific  Railroad  Com- 
pany, filed  by  leave  of  the  Court  granted  upon  the 
consent  of  Counsel  of  record  for  both  parties, 


S.    W. 


TOR      S.     P.     R.     R.     CO. 


H.    S. 


SACRAMENTO  : 

CROCKER   &   CO.,   PRINTERS,   42    AND   44   J   STREET. 
1870. 


OF    THE 


STATE     OF     CALIFORNIA 


THE  STOCKTON  AND  YISALIA  RAIL- 
ROAD COMPANY, 

Petitioner, 


vs. 


THE  COMMON  COUNCIL  OF  THE  CITY 
OF  STOCKTON, 

Respondent. 


Brief  on  behalf  of  the  Southern  Pacific  Railroad  Company, 
filed  by  leave  of  the  Court  granted  upon  the  consent 
of  Counsel  of  record  for  both  parties, 


The  limited  time  which  has  been  allowed  for 
the  preparation  of  this  brief,  renders  it  impossible 
to  do  more  than  touch  upon  what  appear  to  be 
the  principal  points  in  the  case.  I  shall  there- 


fore  not  undertake  to  answer  in  detail  the  very 
able  briefs  which  have  been  filed  on  behalf  of  the 
Respondent;  nor  shall  I  undertake  to  review 
cases — for  two  reasons — first,  I  have  not  the 
time,  and  second,  that  duty  has  already  been  per- 
formed by  other  Counsel. 

The  question,  which  the  case  presents,  is  whe- 
ther legislation  which  authorizes  counties  and 
cities  to  aid  in  the  construction  of  railroads, 
which  are  to  pass  through  their  borders,  by  do- 
nations, in  the  form  of  county  or  city  bonds,  to 
the  corporations  proposing  to  construct  them,  is 
valid  under  the  Constitution  of  this  State. 

Those  who  claim  that  such  legislation  is  uncon- 
stitutional, do  so  upon  the  following  grounds: 

First.  That  such  legislation  is  not  an  exercise 
of  the  power  of  eminent  domain,  because  it  takes 
the  property  of  the  citizen  u  without  just  com- 
pensation," which  compensation  is  made  a  condi- 
tion, by  the  Constitution,  to  the  exercise  of  that 
power. 

Second.  That  such  legislation  can  be  upheld 
under  no  legislative  power  unless  it  be  the  power 
of  taxation. 

Third.  That  such  legislation  cannot  be  sus- 
tained as  an  exercise  of  the  taxing  power,  be- 
cause that  power  is  a  power  "  to  take  from  the 


citizen  a  certain  proportion  of  his  property  to  be 
expended  for  public  purposes,"  while  the  legislation 
in  question  takes  a  portion  of  his  property  to  be 
expended  for  &  private  purpose. 

Fourth.  That  whether  a  given  tax  is  for  a 
public  or  private  use,  is  a  judicial  and  not  a  legis- 
lative question. 

Fifth.  That,  in  addition  to  the  foregoing  con- 
siderations, there  are  certain  express  provisions 
of  the  Constitution  to  which  this  legislation  is 
repugnant,  viz:  The  clause  which  provides  that 
"  no  person  shall  be  deprived  of  life,  liberty  or 
property  without  due  process  of  law" — the  clause 
in  the  Bill  of  Rights,  which  enumerates  the  in- 
alienable rights  of  persons  in  relation  to  life,  lib- 
erty, property,  safety  and  happiness — the  clause 
in  relation  to  the  formation  of  incorporations, 
other  than  municipal,  under  general  laws  and  not 
by  special  Acts — the  clause  in  relation  to  the  or- 
ganization of  cities  and  incorporated  villages,  and 
restricting  their  power  of  taxation,  assessments, 
etc.,  so  as  to  prevent  abuses — the  clause  provi- 
ding that  the  credit  of  the  State  shall  not  be 
loaned  to  or  in  aid  of  any  individual,  association 
or  corporation — and  lastly,  the  clause  which  re- 
quires that  taxation  shall  be  equal  and  uniform. 

I  think  the  foregoing  is  a  fair  statement  of  the 
positions  which  have  been  assumed  by  the  ene- 


mies  of  this  legislation,  and  the  reasons  by  which 
their  alleged  soundness  has  been  attempted  to  be 
maintained.  The  soundness  of  some  of  these 
propositions  is  admitted,  and  that  of  others  de- 
nied. 

First.  It  is  admitted  that  such  legislation  is 
not  an  exercise  of  the  power  of  eminent  domain. 

Second.  It  is  admitted  that  it  can  be  sustained 
only  upon  the  ground  that  it  is  an  exercise  of  the 
power  of  taxation. 

Third.  It  is  admitted  for  the  sake  of  the  argu- 
ment, but  denied  as  an  abstract  proposition,  that 
the  power  of  taxation  is  a  power  to  take  a  per- 
centage of  the  property  of  the  citizen  for  public 
purposes  only. 

It  is  denied,  First:  That  such  legislation  takes  a 
percentage  of  the  property  of  the  citizen  for  pri- 
vate purposes. 

Second.  It  is  denied  that  whether  a  given  tax 
is  for  a  public  or  private  purpose  is  a  judicial,  not 
a  legislative  question,  and  the  contrary  affirmed. 

Third.  It  is  denied  that  either  of  the  clauses 
of  the  Constitution  specially  referred  to  above? 
prohibits  such  legislation. 

As  it  is  not  deemed  necessary  to  dwell  at  length 
upon  the  question  whether  this  kind  of  legislation 
is  repugnant  to  the  several  express  clauses  of  the 


Constitution    specially    referred    to    above,    they 
will  be  first  considered. 

I. 

The  idea  that  this  legislation  is  repugnant  to 
that  clause  of  the  Constitution  which  provides 
that  no  person  shall  be  deprived  of  life,  liberty  or 
property,  without  due  process  of  law,  is  founded 
upon  an  utter  misapprehension  of  the  object  which 
that  provision  was  intended  to  secure.  It  is  to  be 
found  in  all  American  Constitutions.  It  was  bor- 
rowed, or  inherited,  from  Magna  Charta.  It  is 
the  provision  of  that  instrument  by  which  the 
Barons  of  England  extorted  from  King  John  a 
royal  pledge  that  the  right  of  trial  by  jury  should 
remain  forever  inviolate.  The  language  of  Magna 
Cliarta  is:  "Nee  super  eum  ibimus,  nee  super  mitti- 
mus, nisi  pet'  legale  judidum  parimn  sucrum,  VEL  PER 
LEGEM  TERR^E" — (neither  will  we  pass  upon  him, 
or  condemn  him,  but  by  the  lawfnl  judgment  of 
his  peers,  or  by  the  law  of  the  land).  Lord  Coke 
says  that  these  latter  words,  "per  legem  terrce"  (by 
the  law  of  the  land)  mean  by  due  process  of  law; 
that  is,  without  due  presentment  or  indictment, 
and  being  brought  in  to  answer  thereto,  by  due 
process  of  the  common  law.  "  So  that,"  says 
Judge  Story,  "  this  clause  in  effect  affirms  the 
right  of  trial  according  to  the  process  and  pro- 
ceedings of  the  common  law."  (2  Story  on  the 


Constitution,  §1789.)  Instead  of  the  phrase, 
u  by  the  law  of  the  land,"  which  was  used  in 
Magna  Charta,  the  phrase  employed  by  Lord  Coke 
in  defining  its  meaning  has  been  substituted  in 
American  Constitutions.  The  clause  relates  to 
judicial  and  not  legislative  functions.  The  idea 
that  this  clause  of  Magna  Oharta  had  anything  to 
do  with  the  exercise  of  the  taxing  power,  would 
have  astonished  the  Kings  and  Barons  of  Eng- 
land. Taxes  were  not  then,  nor  are  they  now, 
assessed,  apportioned,  or  collected  by  or  accord- 
ing to  common  law  methods,  but  by  Acts  passed 
by  the  Commons  of  Great  Britain  in  Parliament 
assembled,  who  first  fixed  the  amount  to  be  raised 
and  then  prescribed  the  ways  and  means  by  which 
it  was  to  be  collected.  (1  Biackstone,  308.) 

But  concede,  for  the  sake  of  the  argument,  that 
this  clause  of  the  Constitution  is  broad  enough 
and  was  intended  to  include  the  exercise  of  the 
power  of  taxation,  what  pretense  is  there  for  say- 
ing that  this  tax,  if  collected,  will  be  collected 
without  due  process  of  law?  It  will  have  been  le- 
vied, apportioned,  and  collected  according  to  ex- 
press laws  passed  by  the  law-making  p'ower.  The 
property  of  the  citizen  will  have  been  taken,  then, 
according  to  law;  that  is  to  say,  by  due  process 
of  law.  When  the  citizen  has  been  deprived  of 
his  life,  liberty,  or  property  by  the  operation  of. 


and  according  to.  a  valid  law,  how  can  it  be  said 
that  he  has  been  so  deprived  ''without  due  pro- 
cess of  law?" 


If  there  be  any  repugnancy  between  this 
legislation  and  that  clause  of  the  Bill  of  Rights 
which  enumerates  the  inalienable  rights  of  per- 
sons, it  must  be  because  it  proposes  to  take  the 
property  of  A  and  give  it  to  B,  or  in  other  words, 
to  tax  the  citizen  fora  private  purpose  (as  claimed 
by  the  opponents  of  this  legislation),  which  I 
deny,  and  will  endeavor  to  establish  when  I  come 
to  consider  what  is  &  public  use,  and  by  whom  the 
question  of  puUic  or  private  use  is  to  be  deter- 
mined. If,  as  I  claim,  this  legislation  is  a  Con- 
stitutional exercise  of  the  taxing  power,  it  is  ob- 
vious that  it  cannot  be  repugnant  to  the  Bill  of 
Rights,  for  the  acquisition,  possession  and  enjoy- 
ment of  property  there  mentioned  does  not  in- 
clude exemption  from  taxation. 

(&) 

It  is  not  perceived  what  bearing  the  clause  of 
the  Constitution,  in  relation  to  the  formation  of 
corporations,  other  than  municipal,  has  upon  the 
question  now  before  the  Court.  The  language  of 
that  clause  is  as  follows  :  u  Corporations  may  be 
formed  under  general  laws,  but  shall  not  be  cre- 
ated by  special  Act,  except  for  municipal  purpo- 


ses."  There  can  be  no  doubt  about  the  object, 
and  the  only  object  intended  to  be  secured  by 
this  provision.  It  was  considered  that  the  crea- 
tion of  corporations,  other  than  municipal,  by 
special  Acts,  would  be  troublesome  and  mis- 
dhievous,  for  such  had  proved  to  be  the  case  in 
older  States.  It  was  therefore  provided  that 
there  should  be  but  one  rule  for  their  creation, 
which  should  be  declared  in  a  general  law.  It 
was  further  considered,  however,  that  for  obvi- 
ous reasons,  a  general  rule  would  be  impractica- 
ble in  respect  to  the  creation  of  municipal  cor- 
porations. Hence  they  were  excepted  from  this 
limitation  and  left  to  stand,  in  relation  to  the 
Legislature,  upon  precisely  the  same  ground  upon 
which  they  would  have  stood  had  no  such  clause 
been  inserted  in  the  Constitution — upon  pre- 
cisely the  same  ground  upon  which  they  now 
stand  in  States  where  no  such  constitutional  re- 
striction exists.  The  whole  purpose  and  effect  of 
this  clause  has  been,  and  is,  to  prohibit  the  crea- 
tion of  any  corporations,  other  than  municipal, 
by  special  statute.  It  spends  its  whole  force 
upon  the  former  class  of  corporations.  It  places 
no  restrictions  upon  the  power  of  the  Legislature 
in  respect  to  the  latter  class,  but  on  the  contrary 
leaves  them  where  they  were  before — to  be  cre- 
ated by  general  or  special  laws  in  the  discretion 
of  the  Legislature,  without  any  restriction  what- 

•4 


9 

ever,  either  as  to  the  mode  of  their  creation,  or 
the  extent  or  character  of  the  franchises  and 
powers  to  be  granted  to  them.  If  there  be  any 
constitutional  reason  why  municipal  corporations 
cannot  be  authorized  to  aid  in  the  construction 
of  a  railroad  under  the  provisions  of  the  statute 
now  before  the  Court,  it  must  be  sought  for  in 
some  other  place.  The  idea  that  the  word  "  mu- 
nicipal," which  is  obviously  used  solely  for  the 
purpose  of  classification,  was  used  to  limit  the 
powers  to  be  conferred  by  the  Legislature  upon 
that  class  of  corporations,  with  all  due  deference 
to  the  opinion  of  the  Attorney  General  and  those 
who  think  with  him,  is  simply  absurd.  There  is 
nothing  in  the  Constitution  of  this  State  which 
provides  what  powers  shall  or  shall  not  be  con- 
ferred upon  municipal  corporations.  Such  a 
clause  in  a  Constitutor*  would  be  most  anomalous, 
and  it  has  been  wisely  left  to  the  Legislature  to 
confer  such  powers  upon  them  as  circumstances 
may  seem  to  demand  at  the  time  of  their  crea- 
tion. "  So  far  as  municipal  corporations  are  in- 
vested with  subordinate  legislative  powers  for  lo- 
cal purposes,  they  are  mere  instrumentalities  of 
the  State  for  the  convenient  administration  of  the 
Government,  and  their  powers  are  under  the  en- 
tire control  of  the  Legislature;  they  may  be  qual- 
ified, enlarged,  restricted,  or  withdrawn  at  its  dis- 
cretion." (Grogan  vs.  San  Francisco,  8  Cal.  613.) 


10 


The  only  clause  of  the  Constitution  which 
has  even  a  cognate  relation,  in  this  connection, 
to  the  question  involved  in  this  case,  is  the 
thirty-seventh  section  of  the  fourth  Article, 
which  reads  as  follows  : 

"It  shall  be  the  duty  of  the  Legislature  to  provide  for 
the  organization  of  cities  and  incorporated  villages,  and  to 
restrict  their  power  of  taxation,  assessment,  borrowing 
money,  contracting  debts,  and  loaning  their  credit,  so  as 
to  prevent  abuses  in  assessments  and  in  contracting  debts 
by  such  municipal  corporations." 

This  obviously  belongs  to  that  class  of  consti- 
tutional provisions  which  are  advisory  or  directory. 
Instead  of  restricting  the  powers  to  be  conferred 
upon  municipal  corporations,  in  the  matters  of 
taxation,  assessments,  borrowing  money,  con- 
tracting debts,  and  loaning  their  credit,  it  as- 
sumes that  such  powers  are  indispensable  to  cor- 
porations of  that  class,  and  that  they  must  and  will 
be  conferred  by  the  Legislature,  and  simply  enjoins 
upon  the  Legislature  the  duty  of  guarding  the 
exercise  of  such  powers  in  such  a  manner  as  to 
prevent  abuses,  thus  leaving  the  whole  matter 
entirely  in  the  discretion  of  the  Legislature.  As 
to  the  purposes  or  objects  for  which  the  powers 
enumerated  may  be  exercised,  not  a  word  is  said, 
but  they,  too,  are  left  to  the  discretion  of  the 
Legislature.  In  all  respects  municipal  corpora- 


11 

tions  are  left  in  the  hands  of  the  Legislature 
with  the  mere  injunction  to  see  that  they  do  not 
abuse  their  powers,  but  leaving  that  body  to  de- 
termine for  itself  what  will  and  what  will  not 
amount  to  an  abuse.  Finally,  instead  of  prohib- 
iting what  the  statute  now  before  the  Court  per- 
mits, this  clause  of  the  Constitution  directly 
sanctions  the  act,  if  in  the  opinion  of  the  Legis- 
lature it  does  not  amount  to  an  abuse.  That  the 
act  does  not  amount  to  an  abuse  in  the  judg- 
ment of  that  body,  the  statute  now  before  the 
Court  is  conclusive  evidence. 


That  the  tenth  section  of  the  eleventh 
Article  of  the  Constitution  which  provides  that 
''The  credit  of  the  State  shall  not,  in  any  man- 
ner. be  given  or  loaned  to,  or  in  aid  of  an}^  indi- 
vidual, association,  or  corporation;  nor  shall  the 
State  directly  or  indirectly  become  a  stockholder 
in  any  association  or  corporation,"  does  not  pro- 
hibit this  legislation,  has  been  demonstrated  by 
one  who  once  sat  upon  the  Bench  of  this  Court; 
therefore  no  more  need  be  done  than  to  refer  this 
Court  to  what  he  said.  In  Pattison  vs.  The  Board 
of  Supervisors  of  Tuba  County,  IS.Cal.  175,  it  was 
argued,  as  it  has  been  in  this  case,  that  a  restric- 
tion upon  the  State  was  also  a  restriction  upon 
each  political  subdivision  of  the  State,  and  there- 

9* 


12 

fore  that  the  Legislature  could  not  enable  coun- 
ties or  cities  to  do  what  it  was  itself  prohibited 
from  doing  in  behalf  of  the  State.  Replying  to 
this  argument  Judge  Baldwin  said  : 

"  But  the  radical  error  of  the  argument  is,  this  provision 
only  applies  to  the  State  as  a  corporation — as  a  political 
sovereign  represented  by  her  law-making  power.  As  such 
corporation,  or  sovereign  being,  she  has  no  subdivisions,  for 
sovereignty  is  not  divisible.  She  may  have  political  sub- 
divisions— that  is,  she  may  permit  a  portion  of  her  powers 
of  government  to  be  exercised  by  local  agents,  who,  of 
course,  are  her  subordinates.  But  politically  considered, 
geographical  or  political  departments  are  no  more  the 
State  or  a  part  of  the  State,  than  a  man's  land,  or  his 
agent  is  a  part  of  himself.  The  intent  of  this  clause  of  the 
Constitution  is  plain  enough;  it  was  designed  as  a  check 
on  legislation,  and  such  legislation  as  might  create  a  charge 
upon  the  property  of  the  entire  State.  But  it  is  not  only 
unwarranted  by  the  words  of  the  Constitution  to  suppose 
that  counties  weie  included  in  this  inhibition,  but  it  might 
well  have  been  foreseen  that  the  provision  would  prove 
extremely  embarrassing.  .*  *  *  The  general  powers 
of  Government  being  vested  in  the  Legislature,  the  power 
to  pass  this  law  must  be  conceded,  unless  some  constitu- 
tional restriction  is  imposed.  We  see  no  restriction  in  this 
case.  The  fact  that  the  State  could  not  take  stock  in  this 
road  does  not  show  that  the  Legislature  could  not  author- 
ize the  county  of  Yuba  to  take  stock  •  for  the  reason  that 
the  Constitution  says  the  State  shall  not  subscribe,  and 
does  not  say  that  the  county  of  Yuba  shall  not.  The 
restriction  goes  no  further  than  the  language  carries  it.  It 
comprehends  the  particular  act  and  party  interdicted — 
none  other."  (Page  183 .^ 

To  hold  that  this  interdiction  upon  the  State 
is  also  an  interdiction  upon  counties  and  cities,  is 
to  put  words  in  the  Constitution  which  its  fram- 


13 

ers  omitted,  and  to  overturn  a  well  settled  rule  of 
Constitutional  and  statutory  construction — Ex- 
pressio  wiius  exclusio  aMerius  est. 

That  such  is  the  proper  construction  ma}^  be 
further  illustrated  by  reference  to  another  and 
cognate  provision  of  the  Constitution,  viz:  The 
eighth  Article,  which  restricts  the  creation  of  an 
indebtedness  exceeding  the  sum  of  three  hundred 
thousand  dollars,  except  in  certain  cases  there 
specified.  If  the  reasoning  of  the  adversaries  of 
this  legislation  proves  that  counties  and  cities 
cannot  loan  their  credit,  in  aid  of  a  corporation, 
because  the  State  cannot,  it  must  inevitably  fol- 
low that  this  restriction  upon  State  indebtedness 
also  includes  counties  and  cities,  and  that  the  in- 
debtedness of  the  State,  counties  and  cities,  com- 
bined, can  never  be  allowed  to  exceed  the  sum  of 
three  hundred  thousand  dollars,  except  in  the 
cases  otherwise  provided  for,  without  a  violation 
of  the  Constitution.  Speaking  of  this  provision, 
in  the  case  of  Pattison  vs.  The  Board  of  Supervis- 
ors of  Tula  county,  already  referred  to,  Justice 
Baldwin  said: 

"  It  is  not  only  unwarranted  by  the  words  of  the  Con- 
stitution to  suppose  that  counties  were  included  in  this 
inhibition,  but  it  might  well  have  been  foreseen  that  the 
provision  would  prove  extremely  embarrassing,  if  it  did  not 
entirely  stop  the  operations  of  those  local  governments. 
All  of  them,  or  nearly  all,  we  believe,  have  been  obliged 
to  go  in  debt  to  support  themselves;  and,  besides,  the  res- 


14 

triction  would  bo  wholly  impracticable,  for  how  ascertain 
from  time  to  time,  whether  the  aggregate  of  this  indebted- 
ness pa.ssed  the  limit,  and  when,  or  whether,  by  payments 
or  otherwise,  returned  within  it  again?  For  the  question 
of  the  validity  of  any  contract  or  debt  would  depend  upon 
the  general  balance  of  State  *md  county  debts  or  credits. 
Many  cases  have  come  before  this  court  involving  the 
validity  of  these  debts,  but  the  point  has  never  before  been 
taken ;  and  we  think  there  is  not  enough  plausibility  in  it  to 
justify  a  more  detailed  exposition  of  its  fallacy" 

To  overturn  this  construction  would  block  the 
wheels  of  government;  yet,  it  is  respectfully  sub- 
mitted, that  this  Court  cannot  give,  to  the  clause 
prohibiting  the  State  from  loaning  her  credit,  the 
construction  for  which  the  Attorney  General  con- 
tends, without  doing  so. 

THE  WORD  MUNICIPAL  NOT  AN  INTERDICTION  UPON 
THE  POWER. 

As  being  german  to  the  foregoing,  it  is  deemed 
best,  at  this  stage  of  the  argument,  to  examine 
the  proposition  advanced  by  the  Attorney  Gene- 
ral, that  the  word  "  municipal,"  by  itself  consid- 
ered, contains  an  interdiction  upon  the  power  un- 
der consideration. 

It  is  said  that  the  power  to  build  railroads  or  to 
aid  in  their  construction  by  the  exercise  of  the 
local  power  of  taxation^  is  no  legitimate  part  of  a 
municipal  government.  A  complete  answer  to  this 
argument  is  found  in  the  circumstance  that  the 
Constitution  nowhere  defines  a  municipal  govern- 
ment— nowhere  provides  what  kind,  or  how 


15 

much  power  a  municipal  government  shall  have, 
but  leaves  the  whole  matter  to  the  Legislature. 
But  assuming,  as  the  argument  undertakes  to 
show,  that  the  word  "municipal"  operates  in 
some  way  as  a  restriction  upon  the  power  of  such 
governments,  and  creates  in  them  an  incapacity 
to  take  certain  powers,  it  remains  to  determine 
whether  the  power  under  consideration  belongs  to 
that  class. 

The  same  point  was  made  in  the  case  of  The 
City  of  Aurora  vs.  West  (9  Ind.  74),  and  I  cannot 
do  better  than  quote  what  the  Supreme  Court  of 
Indiana  said  in  reply: 

"  The  question  therefore  presents  itself,  can  such  power 
be  given  to  a  city  ?  Of  the  policy  of  conferring  it,  we 
have  said  all  that  becomes  us  to  say,  in  The  City  of 
Lafayette  vs.  Cox,  5  Ind.  E.  38,  to  which  we  refer.  Of  the 
capacity  to  confer  it,  we  have  not  heretofore  expressed  an 
opinion.  That  is  now  the  question.  We  have  seen  that 
no  express  Constitutional  provision  stands  in  the  way  of 
granting  such  power  to  a  city,  as  we  hold  that  the  prohi- 
bition in  the  Constitution  upon  the  Legislature  to  create  a 
State  debt,  does  not  prohibit  that  body  from  authorizing 
cities  to  create  debts.  This  is  our  construction  of  the  lan- 
guage of  the  Constitution.  But  it  is  insisted  that  the 
power  is  not  a  legitimate  part  of  the  authority  of  a  muni- 
cipal corporation — that  it  is  outside  of  the  purpose  for 
which  such  corporations  are  created — and  that  this  is  a 
sufficient  reason  for  holding  them  incompetent  to  receive  a 
grant  of  such  power.  But  is  not  this  begging  the  very 
question  to  be  decided  ?  For  what  precise  purpose  are 
municipal  corporations  created  ?  How  much  power,  and 
no  more  nor  no  less,  is  embraced  by  the  idea  of  a  munici- 
pal corporation  ?  We  have  not  been  satisfactorily  enlight- 


16 

ened  on  this  point.  If  the  Legislature  can  confer  a  little 
legislative  power  upon  a  city  for  local  objects,  can  it  not 
confer  a  greater  amount  for  the  same  objects?  It  would 
hardly  be  said  that  cities  were  created  simply  to  establish 
and  enforce  police  regulations  —  to  maintain  order 
amongst  the  citizens.  BJT  common  custom  they  establish 
sanitary  regulations,  rules  governing  markets,  etc.;  and  on 
what  principle  do  they  exercise  these  powers?  They  go 
further  They  construct  streets,  side-walks,  bridges,  eto.^ 
within  their  limits.  They  do  more.  They  build  wharves 
to  accommodate  their  trade  and  commerce,  coming  to  them 
from  a  distance ;  they  construct  water  works  —  going  for 
the  purpose  miles  beyond  corporate  limits.  They  construct 
works  for  lighting,  etc.  These,  and  other  like  powers, 
though  not  existing  in  every  one,  yet,  we  believe,  all  con- 
cede, may  be  conferred  upon  municipal  corporations  as 
legitimate,  as  Constitutional,  though  in  their  exercise  the 
citizens  are  not  severally  equally  benefited  in  proportion 
to  taxes  paid.  Now  if  a  city  may  build  wharves,  or  take 
stock  in  companies  created  to  build  them,  to  foster  com- 
merce— may  take  stock  in  companies  chartered  to  furnish 
the  people  with  water,  light,  etc. — why,  as  a  question  of 
power,  may  it  not  take  stock  in  companies  for  the  making 
of  highways  to  facilitate  the  bringing  in  of  bread,  and 
meat  and  fuel  to  the  citizens  ?  Are  not  these  of  nearly  as 
much  importance  to  them  as  water,  light,  etc  ?  And  are 
not  such  works,  in  a  special  manner,  locally  advantageous 
to  the  city  ?  And  when  the  citizens  of  a  place  have  seen 
fit  to  ask,  and  the  Legislature  to  grant  such  power,  and 
the  citizens  have  subsequently,  ?n  the  prescribed  mode, 
exercised  it,  no  Constitutional  provision  forbidding,  a 
court,  whose  province  is  simply  to  decide  what  the  law  is, 
not  what  it  should  be,  cannot  annul  such  exercise  of 
power.  How  much  local  benefit  must  an  improvement 
confer  to  bring  it  within  the  spirit  of  a  local  one  ?  If  a 
city  may  build  a  wharf  to  accommodate  its  commerce,  may 
it  not,  also,  a  depot  ?  May  it  not  build  the  track  of  a 
road  through  its  corporate  limits?  May  it  not,  then,put  in 
that  amount  of  stock  or  bonds  to  pay  the  company  the  sum 
the  depot  and  track  would  cost  ?  "  *  *  * 


17 

The  further  position,  taken  by  counsel  in  this 
case,  to  the  effect  that  conceding  the  power  to 
cities  of  aiding,  by  the  exercise  of  the  taxing 
power,  the  construction  of  such  local  improve- 
ments as  expend  their  benefits  upon  their  citizens, 
and  no  one  else,  still  the  power  does  not  extend 
to  improvements  which  may  also  benefit  other 
persons,  did  not  escape  the  eye  of  the  Court  in 
the  above  case.  Speaking  to  this  point  the  Court 
further  said: 

"  It  is  true,  the  water-works  may  benefit  nobody  but 
the  citizens  of  the  city,  while  the  railroad  may  benefit 
the  surrounding  country,  to  some  extent^  at  the 
same  time  it  confers  a  great  local  benefit  on  the  city — 
one,  perhaps,  greater  than  the  water  works.  But,  where 
such  is  the  case,  should  the  city  be  deprived  of  the  right 
to  benefit  itself  locally,  because  it  cannot  do  so  without 
also  benefiting  others?  And  if  the  argument  is  a  good 
one,  that  cities  are  necessarily  incapable  of  aiding  any  im 
provement  that  may  extend  beyond  the  corporate  limits, 
will  it  not  apply  with  equal  force  to  States  ?  May  it  not 
be  said  that  a  State  is  created  to  govern  within  its  terri- 
torial limits  ;  and,  hence,  that  it  is  unconstitutional  for  it 
to  aid  any  work  extending  beyond  those  limits?  That  In- 
diana, therefore,  could  not  aid  in  the  construction  of  the 
Wabash  and  Erie  Canal,  because  it  extended  into  Ohio  ? — 
That  she  could  not,  with  the  consent  of  Ohio,  construct 
that  portion  of  the  Whitewater  Canal,  lying  in  that  State 
because  it  was  without  her  territorial  limits  ? — That  South 
Carolina  could  not  aid  in  the  construction  of  a  railroad  to 
Memphis,  in  Tennessee,  or  to  New  Orleans,  in  Louisiana? 
But  is  this  the  doctrine  ?  A  State  can  do  what  its  Constitu- 
tion does  not,  by  positive  provision,  or  reasonable  implication^ 
prohibit.  The  United  States,  and  city  corporations,  can 
do  only  what  their  Constitutions  permit.  If  the  Consti- 

3 


18 


tution  of  the  United  States  expressly  authorized  the  Gov 
ernment  to  construct,  with  the  consent  of  the  States,  road 
within  their  limits,  would  there  be  any  doubt  of  their 
power  to  do  so  ?  If  a  State,  then,  can  construct,  by  per- 
mission— if  South  Carolina  can,  with  the  consent  of  Ten" 
nessee,  construct  a  road  in  that  State — cannot  a  city  of  a 
State  be  authorized  by  the  State  to  take  stock  in  a  road 
extending  beyond  her  corporate  limits?  We  think  the 
proposition  may  be  asserted,  that  one  Government  may 
act  within  the  territorial  limits  of  another  with  the  consent 
of  the  latter." 

This  reasoning,  which  has  received  the  approval 
of  this  Court,  in  the  case  already  cited,  1  submit, 
leaves  nothing  to  be  said  in  answer  to  the  propo- 
sition that  there  is  some  undefined  prohibitory 
force  inherent  in  a  municipal  corporation  which 
incapacitates  it  to  receive  the  power  in  question, 
if  the  Corporation  asks  it  and  the  Legislature  sees 
proper  to  confer  it.  If  by 'taxation  the  city'  of 
San  Francisco  can  bring  in  the  waters  of  Tahoe,  a 
distance  of  two  hundred  and  fifty  miles,  and  make 
them  tributary  to  the  necessities  of  her  citizens, 
which  no  stickler  for  a  strict  construction  of  mu- 
nicipal power  can  deny,  with  any  show  of  reason, 
may  she  not,  instead  of  incurring  the  whole  cost, 
donate  a  part  of  it  to  the  corporation  which  pro- 
poses to  do  the  same  thing  ?  If,  in  the  judgment 
of  her  citizens,  a  bridge  across  the  Bay  of  Sari 
Francisco  would  facilitate  her  trade,  travel  and 
commerce,  does  any  one  doubt  her  power  to  build 
it  by  taxation,  if  the  Legislature  grants  the  pow- 


19 

cr?  And,  if  she  may,  can  she  not,  instead  of 
building  it.  contribute  to  the  means  of  a  corpora- 
tion which  proposes  to  build  it  ?  The  mere  word 
'•municipal"  can  no  more  limit  the  powers  of  a 
municipal  government  than  it  can  limit  the  neces- 
sities and  wants  of  its  people.  The  former  must 
keep  pace  with  the  latter,  and  the  latter  will  be 
found  to  keep  pace  with  invention  and  discovery 
or  human  progress  in  all  the  departments  of  social 
and  material  life. 


It  has  been  so  often  held  by  this  Court  that 
the  clause  of  the  Constitution  which  directs 
that  "taxation  shall  be  equal  and  uniform 
throughout  the  State,"  applies  only  to  imposi- 
tions upon  property  for  the  purposes  of  revenue 
(merely  exacting,  even  in  such  cases,  equality 
and  uniformity  in  assessments),  and  has  no  appli- 
cation whatever  to  taxes  levied  for  other  pur- 
poses, that  to  dwell  upon  this  point  is  considered 
a  waste  of  time.  (1  Cal.  232;  2  Cal.  590;  4  Cal. 
46;  12  Cal.  76;  13  Cal.  343.) 

My  conclusion  upon  the  points  thus  far  consid- 
ered is,  that  there  is  nothing  in  the  express  or 
implied  limitations  of  the  Constitution  which 
prohibits  this  kind  of  legislation,  unless  such 
legislation  can  be  shown  to  be  a  misuse  or  abuse 
of  the  taxing  power,  by  itself  considered,  for  the 


20 

reason,  as  alleged  by  its  enemies,  that  its  purpose 
and  object  is  private  and  not  public,  which  is  the 
only  question  in  the  case  about  which  there  can 
be  any  rational  controversy.  All  other  points 
are  but  make-weights. 

II. 

The  Attorney  General  has  quoted  in  his  brief 
various  definitions  of  the  power  of  taxation.  So 
far  as  they  go  they  are  doubtless  unobjectionable. 
They  are  doubtless  comprehensive  enough  to  an- 
swer all  the  calls  of  ordinary  occasions,  but  it  is 
manifest  that  they  are  but  blind  guides  in  the 
present  case,  for  to  say  that  it  is  a  power  which 
can  be  exercised  only  to  subserve  a  public  pur- 
pose, or  use,  and  there  stop,  is  to  give  but  a  very 
vague  and  unsatisfactory  idea  of  its  nature.  The 
reason  is  unsatisfied  and  at  once  inquires:  "  But 
what  is  a  public  use  ?"  And  until  that  question 
is  answered,  no  very  clear  conception  of  the  na- 
ture and  extent  of  the  taxing  power  can  be 
reached.  The  words  "  public  use  "  occur  in  that 
clause  of  the  Constitution  which  puts  a  limita- 
tion upon  the  exercise  of  the  power  of  eminent 
domain — "  Nor  shall  private  property  be  taken 
for  public  use  without  just  compensation."  Under 
the  head  of  eminent  domain  unnumbered  cases 
are  to  be  found  in  which  the  term  "  public  use  " 
has  received  definitions  at  the  hands  of  both  Leg- 


21 

islative  and  Judicial  bodies,  not  only  in  an  ab- 
stract way,  but  by  examples.  It  has  been  defined 
by  this  court  to  be  ua  use  which  concerns  the 
whole  community,  as  distinguished  from  a  partic- 
ular individual  or  a  particular  number  of  individ- 
uals. It  is  not  necessary,  however,  that  each  and  ev- 
ery individual  member  of  society  should  have  the 
same  degree  of  interest  in  this  use  or  be  personally, 
or  directly  affected  by  it,  in  order  to  make  it  pub- 
lic." *  *  "  If  the  use  *  * 

be  to  satisfy  a  great  public  want  or  pub- 
lic exingency,  it  is  a  public  use. 

But  no  definition  is  given  of  public 
uses"  (in  the  Constitution).  "We  have  seen 
however  that  this  public  use  need  not  be  a  use 
general  or  common  to  all  the  people  of  the  State 
alike.  It  may  be  a  use  in  which  but  a  small  por- 
tion of  the  public  will  be  directly  benefited,  as  a 
street  in  a  town,  a  bridge  or  a  railroad,  necessarily 
local  in  its  benefits  and  advantages,  though  it 
must  be  of  such  a  character  as  that  the  general 
public  may,  if  they  choose,  avail  themselves  of  it. 
It  has  also  been  seen  that  it  is  not  essential  to 
meet  the  requirement,  that  the  use  or  benefit 
should  be  exclusively  for  the  people  of  the  State 
or  even  a  portion  of  those  people.  This  was  held 
in  a  case  in  New  York,  and  we  can  see  no  answer 
to  the  proposition  that  the  people  of  California 
have  no  right  to  complain  that  the  people  of  Ore- 


22 

gon  are  also  benefited  by  a  public  improvement, 
or  that  such  improvement  would  be  any  the  less 
a  public  use  in  California  because  it  was  also  use- 
ful elsewhere."  (Gilmer  vs.  Lime  Point,  18  Cal. 
251.) 

Said  this  f'ourt,  on  another  occasion:  "Wheth- 
er a  way  be  public  or  private  does  not  depend 
upon  the  number  of  people  who  use  it.  but  upon 
the  fact  that  every  one  may  lawfully  use  it  who 
has  occasion."  (Sherman  vs.  Buick,  32  Cal.  252.) 

It  is  true  these  definitions  were  given  in  cases 
involving  the  power  of  eminent  domain,  but 
whatever  can  be  held  to  be  a  public  use,  in  res- 
pect to  the  power  of  eminent  domain,  must  be 
held  to  be  a  public  u*e  in  repect  to  the  power  of 
taxation.  For  the  two  powers,  so  far  as  the  pur- 
pose for  which  they  can  be  exercised  is  concerned 
are,  by  definition,  identical.  Either  may  be  exer- 
cised for  a  public  purpose,  and  neither  can  be  ex- 
ercised for  a  private  purpose.  The  only  differ- 
ence between  them  lies  in  the  circumstance  that 
one  takes  the  specific  property,  and  the  whole  of 
it,  of  a  particular  individual,  and  the  other  takes 
equal  parts  of  the  property  of  all  the  members  of 
the  community.  To  take  the  entire  specific  prop- 
erty of  one  person,  and  not  of  the  other  mem- 
bers of  the  community,  would  be  unequal,  unjust 
and  oppressive ;  hence  the  restriction  upon  the 


23 

act  which  requires  that  just  compensation  shall 
be  made.  But  where  an  equal  part  of  the  prop- 
erty of  each  member  of  the  body  politic  is  taken, 
there  is.  theoretically  at  least,  no  inequality,  no  in- 
justice, no  oppression;  hence  there  is  no  such  re- 
striction or  limitation  upon  the  taxing  power. 
Said  Chief  Justice  Marshall,  in  McCuttough  vs. 
The  State  of  Maryland  (4  Wheaton,  316),  "  the 
power  of  taxation  is  a  power  to  destroy — it  has 
no  limit  except  the  will  of  the  sovereign  by 
whom  it  is  exercised." 


RAILROADS  A  PUBLIC  USE. 

It  is  too  late  to  doubt  the  public  character  of 
railroads.  It  has  been  definitively  settled  with 
scarcely  a  dissenting  voice,  by  both  Legislative 
and  Judicial  action,  as  well  as  the  common  con- 
sent of  all  civilized  nations,  that  railroads  are  im- 
proved highways,  which  afford  vastly  increased 
facilities  for  travel  and  transportation,  and,  as 
such,  have  become  so  necessary  to  the  conve- 
nience and  accommodation  of  the  public  as  to 
justify  Legislative  bodies,  throughout  the  civilized 
world,  in  putting  them,  in  relation  to  the  taxing 
power,  upon  a  level  with  ordinary  highways,  or 
wagon -roads,  which,  as  every  one  knows,  are  con- 
structed and  kept  in  repair  at  the  public  expense 
through  the  exercise  of  the  taxing  power. 


24 

Said  Bacon:  "There  be  three  things  which 
make  a  nation  great  and  prosperous:  a  fertile  soil, 
busy  workshops,  and  easy  conveyance  of  men  and 
things  from  one  place  to  another."  Said  Eaynal: 
u  Let  us  travel  over  all  the  countries  of  the  earth, 
and  wherever  we  shall  find  no  facility  of  passing 
from  a  city  to  a  town,  or  from  a  village  to  a  ham- 
let, there  we  rna}^  pronounce  the  people  to  be  bar- 
barians." 

In  Sherman  vs.  Buich  (32  Cal.  252),  this 
Court  has  said : 

"  To  lay  out  and  establish  roads  or  highways  is  ex- 
clusively within  the  power  and  control  of  the  Government. 
To  do  so  is  one  of  its  most  important  and  onerous  duties. 
*  *  *  Whether  a  given  road  will  subserve 
the  public  need  or  convenience  is  a  question  for  the  Govern- 
ment alone  to  determine." 

Accordingly  in  the  performance  of  this  duty, 
the  Government  may  determine  what  kind,  or 
character,  of  road  is  demanded  by  the  public 
need  or  convenience ;  and  may  accordingly  pro- 
vide that  an  ordinary  mud  road,  or  mud  turn- 
pike, or  a  plank,  or  a  McAdam  road,  or  a  rail- 
road shall  be  built,  according  to  its  opinion  of 
what  the  public  exigencies  may  require.  Gov- 
ernments have  the  same  power  to  build  railroads 
and  operate  them  by  taxation  that  they  have  to 
build  ordinary  roads,  or  other  ways  for  transpor- 
tation and  travel.  It  was  by  the  exercise  of  this 


power  of  taxation  that  New  York  constructed 
and  still  owns  and  operates  the  Erie  and  other 
canals,  aggregating  in  length  eight  hundred  and 
eighty-six  miles.  That  Pennsylvania  constructed 
a  canal  from  Columbia  to  Hollidaysburg,  a  dis- 
tance of  one  hundred  and  eighty-one  miles — a 
canal  from  Johnstown  to  Pittsburg,  a  distance  of 
one  hundred  and  one  miles — a  double  track  rail- 
road from  Philadelphia  to  Harrisburg,  a  distance 
of  eighty-one  miles — a  railroad  between  Johns- 
town and  Hollidaysburg,  a  distance  of  thirty- 
seven  miles;  all  of  which  were  sold  by  the  State  to 
the  Pennsylvania  Central  Railroad  Co.  in  1858 
for  seven  and  a  half  millions  of  dollars;  also  five 
other  canals  forming  a  continuous  line  from  the 
Juniata  river  to  the  New  York  State  line,  a  dis- 
tance of  one  hundred  and  sixty  miles;  also  the 
Delaware  division  jpf  the  State  canals  from  Bris- 
tol to  Easton,  a  distance  of  sixty  miles,  which 
were  also  sold  by  the  State  to  the  Sudbury  and 
Erie  Railroad  Company,  in  1858,  for  the  sum  of 
three  and  a  half  millions  of  dollars. 

It  was  also  by  the  exercise  of  this  power  of 
taxation  that  the  State  of  Maryland  constructed 
the  Chesapeake  and  Ohio  Canal,  some  two  hun- 
dred miles  in  length,  at  a  cost  of  five  millions  of 
dollars;  also  the  Chesapeake  and  Delaware  Canal, 
and  also  the  Susquehanna  Canal. 
4 


26 

By  virtue  of  the  same  power  Ohio  constructed 
the  Ohio  Canal,  from  the  Ohio  river  to  Lake 
Erie,  a  distance  of  three  hundred  and  seven  miles, 
and  other  canals  too  numerous  to  mention,  ag- 
gregating a  total  length  of  eight  hundred  and 
twenty-seven  miles,  costing  over  fifteen  millions 
of  dollars. 

To  the  same  use  has  the  power  of  taxation  been 
put  by  the  State  of  Michigan  in  the  commence- 
ment and  partial  completion  of  the  Michigan 
Central  Railroad  and  the  Michigan  Southern 
Railroad,  both  having  been  sold  to  private  par- 
ties before  their  completion. 

The  same  is  true  of  Illinois.  In  1839  that 
State  built  and  opened  as  a  State  road  the  San- 
gamon  and  Morgan  Railroad,  extending  from 
Springfield  to  Naples,  a  distance  of  fifty-six  miles; 
also  a  part  of  the  Chicago,  Alton  and  St.  Louis 
Railroad;  also  the  Illinois  and  Michigan  Canal, 
extending  from  Chicago  to  La  Salle,  a  distance 
of  one  hundred  miles. 

Under  the  same  power  the  Kingdom  of  Bel- 
gium has  constructed  and  still  owns  and  operates 
all  the  railroads  in  her  borders,  aggregating  about 
four  hundred  miles  in  length;  and  other  conti- 
nental governments  have  built  railroads  and 
either  operate  them  directly  or  lease  them  for  a 
term  of  years  to  private  parties. 


27 

And,  lastly,  it  was  by  the  exercise  of  this 
power  that  the  Government  of  the  United  States 
has  done,  what  otherwise  might  not  have  been 
done  during  the  present  century,  secured  the 
completion  of  the  greatest  work  of  the  age — the 
Pacific  Railroad,  by  which  the  East  and  West 
have  been  made  to  come  together. 

It  has  been  said,  however,  that  it  may  be  ad- 
mitted that  Governments  may  construct  rail- 
roads and  operate  them  through  the  exercise  of 
the  taxing  power;  and  that  such  railroads,  while 
they  remain  in  the  ownership  of  the  Government, 
are  public  uses,  but  that  roads  not  constructed 
directly  by  the  Government,  or  which,  as  in 
Pennsylvania  and  other  States,  have  been  so  con- 
structed and  afterwards  sold  to  individuals  or 
corporations,  are  not,  or  have  ceased  to  be  public 
uses  in  the  sense  of  the  taxing  power. 

The  utter  fallacy  of  this  view  should  be  appa- 
rent to  every  one.  It  ignores  a  legal  relation  and 
a  legal  maxim  with  which  every  lawyer  is  famil- 
iar— that  the  title  to  a  thing  may  be  in  one,  and 
the  right  to  use  it  in  another,  and  qui  facit  per 
alium,  facit  per  se.  In  constructing,  managing  and 
controlling  roads  of  any  kind  or  character,  the 
Government  may  act  by  itself  or  by  agents.  If 
in  the  former  mode,  the  road  is  constructed  by 
levying  a  tax  upon  the  property  of  persons  resi- 


28 

ding  in  the  road  district  through  which  it  is  to 
pass;  and  after  it  has  been  constructed,  it  is  to  be 
maintained  and  kept  in  repair  by  a  further  annual 
tax  to  be  paid  by  the  tax-payers  of  the  district. 
If  the  latter  mode  is  adopted,  and  in  later  times 
it  has  generally  been  the  case,  in  respect  to  all 
improved  highways,  a  franchise  or  right  to  con- 
struct the  road  is  granted  by  the  Government  to 
private  individuals  or  corporations,  not  for  their 
use  or  benefit,  but  for  the  use  and  'benefit  of  the 
public.  Such  individuals  or  corporations  become 
the  agents,  or  instrumentalities,  of  the  Govern- 
ment for  the  purpose  of  performing  a  duty  to  the 
public  which  the  Government  would  otherwise 
have  to  perform  through  itself.  To  compensate 
these  agents  for  their  services  in  constructing 
these  roads,  the  Government  delegates  to  them  a 
part  of  its  sovereignty,  and  vests  them  with 
power  to  collect  such  tolls  as  the  Government 
may  determine  to  be  adequate  compensation. 
Roads  of  this  latter  character  are  not  less  public 
highways  than  the  former,  nor  are  they  any  the 
less  constructed  for  public  and  not  private  use. 
Both  are  the  acts  of  the  Government,  acting  under 
the  power  of  taxation.  The  only  difference  is 
one  of  mode  and  manner.  In  the  one  case  the 
public  is  taxed  directly,  and  at  stated  seasons,  to 
enable  the  State  to  construct  and  maintain  the 
road ;  in  the  other,  the  public  is  taxed  only  when 


29 

they  use  the  road,  in  the  form  of  tolls.  To  this 
latter  class,  railroads  belong,  and  in  no  respect 
touching  the  power  of  the  Government  to  con- 
struct, or  to  cause  them  to  be  constructed,  do 
they  differ.  They  are  constructed  and  main- 
tained by  the  Government  through  the  agency  of 
corporations  which  are  compensated  for  doing  so 
by  the  franchise  which  enables  them  to  demand 
and  receive  fares  and  freights.  Every  one  has 
the  same  righf  to  use  them  which  he  has  to  use  a 
mud  turnpike.  It  is  true  that  he  cannot  use 
them  in  the  same  way,  but  this  difference  is  not 
due  to  the  object  for  which  they  arc  constructed, 
but  to  the  nature  of  such  roads,  which  does  not 
admit  of  such  a  mode  of  use. 

From  the  introduction  of  railroads  to  the  pres- 
ent time,  the  Legislatures,  it  is  believed,  of  every 
State  in  the  Union,  have  delegated  the  power  of 
eminent  domain,  which  can  be  exercised  only  to 
subserve  some  public  necessity,  to  railroad  cor- 
porations, and  the  Courts  have  held,  without  a 
dissenting  voice,  that  such  legislation  is  constitu- 
tional. As  that  power  can  be  exercised  only  to 
subserve  a  public  use,  we  have  the  combined  tes- 
timony of  all  the  legislative  and  judicial  bodies  in 
the  country,  that  railroads  are  highways,  and  that 
their  construction  is  therefore  an  object  for  which 
the  Government  may  provide — may  either  con- 


30 


struct  them  directly,  or  cause  them  to  be  con- 
structed, by  granting  a  franchise  to  that  effect  to 
private  parties,  with  a  right  to  collect  tolls  (which 
is  a  form  of  taxation)  by  way  of  compensation, 
the  same  as  in  the  case  of  toll-bridges,  ferries, 
turnpikes  and  plank  roads. 

Said  Chancellor  Wai  worth,  in  Beekman  vs.  Sa- 
ratoga and  Schenectady  Railroad  Co.  (3  Paige,  75) : 

"The  privilege  of  making  a  road  and  taking  tolls  there- 
on is  a  franchise,  as  much  as  the  establishment  of  a  ferry 
or  a  public  wharf,  and  taking  tolls  for  the  use  of  the  same. 
The  public  have  an  interest  in  the  use  of  the  railroad,  and  the 
owners  may  be  prosecuted  for  damages  sustained,  if  they 
should  refuse  to  transport  an  individual,  or  his  property, 
without  any  reasonable  excuse,  upon  being  paid  the  usual 
rate  of  fare." 

Again  in  Bloodgood  vs.  M.  and  H.  Railroad  Co. 
(18  Wend.  16),  speaking  upon  the  same  subject, 
he  said: 

41  It  might  us  well  be  objected  that  a  canal,  made  by  an 
incorporated  company,  wad  not  a  public  improvement,  be- 
cause each  individual  could  not  navigate  it  with  a  canal 
boat,  or  travel  thereon  with  a  steam  engine,  or  that  a  turn- 
pike road  was  of  no  public  utility,  because  each  citizen 
could  not  conveniently  transport  produce  and  passengers 
thereon  with  his  wagon  and  horses." 

Said  Senator  Edwards,  in  the  same  case  : 

u  It  is  entirely  immaterial  who  constructs  the  road,  or 
defrays  the  expense  of  the  construction.  The  object  for 


31 

Avhich  it  is  constructed  must  determine  the  nature  of  the 
grant,  whether  for  public  or  private  use.  What  object  have 
the  Legislature  in  view,  in  authorizing  this  Company  to 
construct  the  road  in  question  on  the  plaintiff's  land  ?  It 
was  not  the  private  emolument  the  Company  was  to  re- 
ceive for  the  use  of  the  road.  For  such  a  purpose  the  right 
would  never  have  been  conferred.  The  Legislature,  who  are 
constituted  the  judges  of  the  expediency  of  taking  private 
.property  for  public  use,  came  to  the  conclusion  that  the 
public  required  the  use  of  a  railroad  between  the  cities  of 
Albany  and  Schenectady.  It  deemed  it  expedient  to  con- 
struct it,  at  the  public  expense,  and  adopted  the  policy  of 
having  a  company  construct  it,  at  its  own  expense  and 
risk,  having  the  money  refunded  by  way  of  tolls  or  fares 
from  the  individuals  who  should  travel  upon  it.  *  *  * 
Because  the  Legislature  permitted  the  Company  to  remu- 
nerate itself  for  the  expense  <>f  constructing  the  road,  from 
those  who  should  travel  upon  it,  its  private  character  is  not 
established ;  it  does  not  destroy  the  public  nature  of  the  road, 
or  convert  it  from  a  public  to  a  private  use." 

In  the  case  of  the  Lexington  and  Ohio  Railroad 
Company  vs.  Appkgate  (8  Dana,  295),  the  Supreme 
Court  of  Kentucky  said: 

"Public  roads,  of  all  sorts,  may  be  constructed  wherever 
the  sovereign  shall  be  pleased  to  have  them ;  and  if  the 
public  choose  to  avail  itself  of  the  capital  and.  liberal 
spirit  of  select  persons  for  insuring  the  construction  of  an 
important  highway,  the  persons  who  may  agree  to  thus 
appropriate  their  own  funds,  may  surely  be  permitted  to  en- 
joy, as  some  equivalent  for  the  expenditure,  the  profits  of 
tolls  prescribed  by  law  for  using  the  road,  and  may  be  au- 
thorized to  construct  and  preserve  it  by  all  the  means 
which  the  Commonwealth  could  constitutionally  employ. 
The  sovereign  will  can  be  effecuated  only  by  the  instru- 
mentality of  agents.  And  in  the  case  just  supposed,  the 
private  association  should  bo  deemed  the  agent  of  the 
public,  although,  as  to  its  conventional  privileges  and  profits,  it 


32 


may  be  only  a  private  corporation, ;  and  the  road  also  should 
be  considered,  in  the  popular  sense,  a  public  highway.  In 
4  East,  second  edition,  page  21,  it  was  held  that  though 
the  lord  of  the  fee  was  entitled  to  the  profits  arising  from 
the  use  of  an  established  road,  yet  it  was  a  public  highway 
— lle  haul  chemin  du  Roy.'  When  the  Legislature  incorpo- 
rates an  association  <*f  private  persons  for  the'purpose  of 
making  a  turnpike  road,  or  a  railroad,  i\\Q  public  welfare 
should  be  presumed  to  be  the  legislative  object  of  the  enact- 
ment; and  though  the  interest  of  the  corporators  be  pri- 
vate and  exclusive,  yet  the  construction  of  the  road  should  be 
deemed  to  have  been  authorized  for  the  public  good,  AS  THE 
CHIEF  AND  PRIMARY  OBJECT;  and  the  Act  of  incorporation* 
and  the  privileges  granted  to  the  corporators,  should  be 
considered  only  as  means  for  effecting  the  public  end,  and  as 
secondary  and  incidental  only.  And,  to  accomplish  such 
an  end  by  such  means,  the  sovereign  power  may  undoubt- 
edly, as  we  think,  exert,  through  such  an  instrumentality, 
all  the  constitutional  authority  which  it  might  employ  for 
the  effectuation  of  a  similar  object  by  any  other  agency,  or  in 
any  other  mode.  The  railroad  is  applied  to  lpublic  use,1 
though  the  profits  are  applied  to  private  use.1' 

Iii  the  case  of  Raleigh  and  Gaston  Railroad 
Company  vs.  Davis  (2  Dev.  &  Batt.  468),  the  Su- 
preme Court  of  North  Carolina  said: 

"  Upon  the  supposition  that  the  Legislature  may  take 
the  property  to  the  public  use,  it  is  next  said,  that  this 
taking  is  not  legitimate,  because  the  property  is  bestowed  on 
private  persons.  It  is  true  that  this  is  a  private  corpora- 
tion; its  outlays  and  emoluments  being  individual  proper- 
ty ;  but  it  is  constituted  to  effect  public  benefit  by  means  of  a 
road,  and  that  is  publici  juris.  In  earlier  times,  there  seems 
to  have  been  a  necessity  upon  Governments,  or  at  least  it 
was  settled  policy  with  them,  to  effect  everything  of  this  sort 
by  the  direct  and  sole  agency  of  the  Government.  The  high- 
ways were  made  by  the  public,  and  the  use  was  nccord- 


33 

ingly  free  to  the  public.  The  Government  assumed  ex* 
elusive  direction  as  well  as  authority,  as  if  they  chose  to 
be  seen  and  felt  in  everything,  and  would  avoid  even  a  re- 
mote connection  between  private  interest  and  public  institu- 
tions. An  immense  and  beneficial  revolution  has  been, 
brought  about  in  modern  times,  by  engaging  individual 
enterprise,  industry  and  economy,  in  the  execution  of 
public  works  of  internal  improvement.  The  general 
management  has  been  left  to  individuals  whose  private 
interests  prompt  them  to  conduct  it  beneficially  to  the 
public;  but  it  is  not  entirely  confided  to  them.  From  the  na- 
ture of  their  undertaking  and  the  character  of  the  work, 
they  are  under  sufficient  responsibilities  to  insure  the  con- 
struction and  preservation  of  the  work,  which  is  the  great 
object  of  the  Government.  The  public  interest  and  control  are 
neither  destroyed  nor  suspended.  The  control  continues 
as  far  as  it  is  consistent  with  the  interests  granted,  and 
in  all  cases  as  far  as  may  be  necessary  to  the  public  use. 
The  road  is  a  highway,  although  the  tolls  may  be  private 
property.  *  *  *  As  to  the  corporation,  it  is 
a  franchise,  like  a  ferry  or  any  other.  As  to  the  public,  it  is 
a  highway,  and  in  the  strictest  sense,  publici  juris," 

So  in  the  case  of  Osborn  vs.  The  United  States 
Bank  (9  Wheaton,  860).  The  question  was 
whether  the  Bank  was  a  public  or  private  insti- 
tution. If  the  latter,  its  business  could  be  taxed 
by  the  States,  but  if  the  former,  its  business 
could  not  be  taxed  by  the  States.  It  was  argued 
that  the  Bank  was  a  private  institution,  because 
four-fifths  of  its  capital  stock  was  owned  by  pri- 
vate individuals,  and  it  was  engaged  in  part  in 
the  banking  business  on  private  account  from 
which  private  profit  and  gain  were  made.  But 

Chief  Justice  Marshall  said : 
5 


34 

"  The  Bank  is  not  considered  as  a  private  corporation 
whose  principal  object  is  individual  trade  and  individual 
profit;  but  as  a  public  corporation,  created  for  public  and 
national  purposes.  That  the  mere  business  of  banking  is, 
in  its  own  nature,  a  private  business,  and  may  be  carried 
on  by  individuals  and  companies,  having  no  political  con- 
nection with  the  Government,  is  admitted;  but  the  Bunk 
is  not  such  an  individual  or  company.  It  was  not  created 
for  its  own  sake  or  for  private  purposes.  It  has  never  been 
supposed  that  Congress  could  create  such  a  corporation' 
*  *  *  It  is  not  an  instrument  which  the  Government 
found  ready  made,  and  has  supposed  to  be  adapted  to  its 
purposes,  but  one  which  was  created  in  the  form  in  which 
it  now  appears,  for  national  purposes  only.  It  is,  undoubt- 
edly, capable  of  transacting  private  as  well  as  public  busi- 
ness. While  it  is  the  great  instrument  by  which  the  fiscal 
operations  of  the  Government  are  effected,  it  is  also  trad- 
ing with  individuals  for  its  own  advantage.  The  appellant 
endeavors  to  distinguish  between  this  trade  and  its  agency 
for  the  public,  between  its  banking  operations  and  those 
qualities  which  it  possesses  in  common  with  every  corpo. 
ration  such  as  individuality,  immortality,  etc." 

The  Chief  Justice  then  proceeded  to  show  at 
length,  the  fallacy  of  the  attempted  distinction, 
and  ruled  that  the  circumstance  that  private  indi- 
viduals were  interested  in  the  operations  of  the  bank, 
and  were  employing  its  franchises  for  the  purposes  of 
private  trade  and  private  profit,  DID  NOT  DETRACT  AT 

ALL  FROM  THE  PUBLIC  CHARACTER  OF  THAT  INSTITUTION. 

In  a  late  case  in  Pennsylvania  (Foster  vs.  Fow- 
ler &  Co.  61  P.  S.  R.  27)  the  question  was 
whether  a  mechanic's  lien  was  valid  in  law  against 
the  property  of  a  corporation  chartered  for  the 
purpose  of  introducing  water  into  certain  towns 


35 

in  that  State,  which  property  was  essential  to  the 
operations  of  the  corporation;  and  that  question 
turned  upon  the  further  question  whether  the 
corporation  was  to  be  considered  as  of  a  public  or 
private  character.  In  discussing  that  question  the 
Court  said: 

"  Most  people  acquainted  at  all  with  corporate  action, 
understand  that  corporations,  other  than  municipal,  which 
are  purely  public,  naturally  divide  into  public  and  private 
corporations;  that  is,  into  those  that  are  agencies  of  the 
public  directly  affecting  it,  and  those  which  only  affect  it  in- 
directly, by  adding  to  its  prosperity  in  developing  its  natu- 
ral resources,  or  improving  its  mental  or  moral  qualities. 
Of  the  former,  are  corporations  for  the  building  of  bridges, 
turnpike  roads,  railroads,  canals,  and  the  like.  The  public 
is  directly  interested  in  the  results  to  be  produced  by  such  cor- 
porations, in  the  facilities  afforded  to  travel  and  the  movements 
of  trade  and  commerce.  *  *  *  This  direct  benefit  to, 
and  accommodation  to  the  public  clearly  distinguish  this 
class  of  corporations  from  the  second  class,  viz  :  private 
corporations,  or  those  in  which  the  public  is  but  indirectly 
interested,  such  as  mining  and  manufacturing,  or  coal  and 
iron  companies,  etc.,  or  libraries,  literary  societies,  schools, 
and  the  like.  Whether  they  progress  or  cease,  the  public 
is  not  directly  affected.  *  *  *  It  is  something,  also, 
that  the  Legislature  regarded  this  as  a  public  corporation 
by  giving  it  the  power  of  eminent  domain.  Still,  if  it 
were  not  essentially  so  in  its  nature,  the  power  would  not 
make  it  so.  The  power  itself  would  fall.  Private  property 
cannot  be  taken  on  any  terms  by  legislative  authority  for 
private  purposes.  This  is  effectually  prohibited  by  tho 
tenth  section  of  Article  first  of  the  Constitution  of  the 
United  States.  But  we  think  the  power  was  properly 
conceded  to  the  purpose  in  this  case,  it  being  public  in  its 
nature  and  design." 

This  division  of  corporations  into  purely  pub- 
lic, purely  private,  and  mixed,  that  is  to   say, 


36 

partly  public  and  partly  private,  has  been  recog- 
nized and  declared  by  this  Court.  In  the  case 
of  the  Miners'  Ditch  Company  vs.  Zellerbach,  37 
Cal.,  577,  Chief  Justice  Sawyer  says  : 

"  There  are  several  classes  of  corporations,  such  as  pub- 
lic municipal  corporations,  the  leading  object  of  which  is 
to  promote  the  public  interest;  corporations  technically 
private,  but  yet  of  a  quasi  public  character,  having  in  view 
some  great  public  enterprise,  in  which  the  public  interests 
are  directly  involved  to  such  an  extent  as  to  justify  conferring 
upon  them  important  Government  powers,  such  as  an  exer- 
cise of  the  right  of  eminent  domain  ;  of  this  class  are 
railroad,  turnpike  and  canal  companies;  and  corporations 
strictly  private,  the  direct  object  of  which  is  to  promote 
private  interests,  and  in  which  the  public  has  no  concern, 
except  the  indirect  benefits  resulting  from  the  promotion 
of  travel,  and  the  development  of  the  general  resources  of 
the  country." 

These  cases  furnish  a  conclusive  answer  to  the 
theory  of  the  Attorney  General,  and  those  who 
think  with  him,  that  railroad  corporations  are 
purely  private  corporations,  and  stand  in  all  re- 
spects, except  the  mere  right  to  be  a  corpora- 
tion, upon  the  level  of  natural  persons.  If  such 
be  the  case,  it  may  be  pertinently  asked  whence 
comes  the  power,  continually  exercised  by  legis- 
lative bodies,  of  regulating  fares  and  freights  ; 
of  putting  a  price  upon  services  rendered  by  such 
corporations  ?  No  such  power  is  ever  exercised 
over  the  business  of  purely  private  corporations, 
formed  for  trading  and  commercial  purposes. 
Such  an  interference  in  their  casewould  be  an 


37 

unjustifiable  meddling  with  the  natural  rights  of 
persons  which  are  possessed  by  them  in  the  same 
degree  that  such  rights  are  possessed  by  individ- 
uals. 

It  is  undoubtedly  true,  that  some  text  writers, 
in  classifying  corporations,  have  placed  railroad, 
canal,  turnpike  and  bridge  corporations  in  the 
class  of  private  corporations.  It  is  also  undoubt- 
edly true  that  the  Courts  sometime  speak  of 
them  as  belonging  to  that  class,  but  writers  and 
Judges  thus  speaking  must  be  understood  in  a  qualified 
sense.  Chief  Justice  Marshall  and  the  Supreme 
Courts  of  North  Carolina,  Kentucky,  Pennsylva- 
nia and  California  have  not  overlooked  in  the  cases 
above  referred  to,  the  circumstance  that  there  is 
between  the  two  classes  of  corporations — purely 
public  and  purely  private — a  middle  class,  which 
possesses  some  of  the  characteristics  of  each ; 
and  in  respect  to  them  have  drawn  a  very  ob- 
vious and  just  distinction,  and  one,  too,  which 
puts  them,  in  relation  to  the  powers  of  eminent 
domain  and  taxation,  upon  the  same  level  with 
corporations  classed  as  purely  public.  When 
Judge  Cooley  and  the  Attorney  General  declare 
railroads  to  be  upon  the  same  level  with  purely 
trading  or  commercial  corporations,  they  ignore 
or  fail  to  note  this  most  obvious  distinction,  and 
therein  lies  the  principal  vice  in  their  argument. 


oo 

<JO 

When  they  assert  that  railroads  are  made  for  the 
benefits  of  private  individuals,  as  their  chief  and 
primary  object,  they  mistake  the  incident  for  the 
principal,  and  attribute  to  the  Legislature  a  mo- 
tive directly  opposite  to  that  which,  as  we  have 
seen,  must  be  presumed.  If  no  direct  benefit 
flows  from  a  given  corporation  to  the  public,  it 
must  undoubtedly  be  classed  as  private ;  and  such 
a  corporation  cannot  be  endowed  with  the  power 
of  eminent  domain,  nor  can  the  public  be  taxed 
to  aid  it.  But  if  a  direct  benefit  flows  from  it  to 
the  public,  then  it  must  be  classed  as  public  when- 
ever its  relation  to  the  Government  is  considered ; 
and  this  quality  is  unaffected  by  the  circum- 
stance that  a  benefit  may  also  flow  from  it  to  pri- 
vate individuals.  If  its  object  and  design  be 
public;  in  part  only,  that  circumstance  is  sufficient 
to  give  the  Legislature  the  power  to  help  it,  to 
foster  it,  on  the  one  hand,  and  to  regulate  and 
control  it  on  the  other.  The  moment  that  it  ap- 
pears that  the  public  has  a  direct  interest  in  the 
objects  and  purposes  of  the  corporation,  that 
moment  the  corporation  becomes  a  thing  of  pub- 
lic concern,  about  which  it  is  the  duty  of  the  Gov- 
ernment to  interest  itself,  to  aid  it,  if  there  be 
occasion,  in  the  judgment  of  the  Legislature,  and 
in  any  event,  to  so  regulate  and  control  it  as  to 
prevent  abuses.  When  Governor  Haight,  in  his 
published  letters  upon  this  subject,  admitted  that 


3D 

(k  railroads  are  a  potent  civilizing  agency  and  con- 
fer great  benefit  upon  every  State  in  which  they 
are  constructed/'  he  felt  and  recognized  their 
public  character,  and  could  not  have  more  im- 
pressively recommended  them  to  the  fostering 
care  of  the  State.  When  Judge  Cooley  admitted, 
in  his  recent  decision,  that  the  same  object  can 
be  public  in  one  sense  and  private  in  another,  he 
overturned  his  own  position  and  completely  re- 
futed his  own  argument.  If  the  object  be  pub- 
lic in  any  sense  the  Government  ma}'  regard  it  in 
that  sense,  and  deal  with  it  in  that  sense.  If  the 
object  and  purpose  of  a  corporation  be  to  sub- 
serve both  a  public  and  private  end,  who  shall 
dictate  to  the  Government  in  which  character  it 
shall  be  regarded.  By  what  right  does  Judge 
Cooley  say  to  the  State  of  Michigan,  "in  one 
sense  railroads  are  of  a  public  character,  "but  in 
another  sense  they  are  of  a  private  character; 
they  are  of  a  great  public  benefit,  for  they  add 
immensely  to  the  facilities  of  travel  and  trans- 
portation, but  they  are  also  of  a  great  private 
benefit,  for  they  put  money  in  the  purses  of  pri- 
vate individuals,  and  hence  in  dealing  with  them 
you  must  close  your  eyes  to  their  public  use  and 
open  them  only  to  their  private  use  ?"  Most 
lame  and  impotent  conclusion  !  A  most  glaring 
non  seqidtur !  The  reverse  is  the  true  deduction. 
How  much  more  in  consonance  with  reason  is  the 


40 

conclusion  drawn  from  the  same  premises  by  the 
Chief  Justice  of  Maine:  "We  apprehend  that 
the  question  of  constitutionality  does  not,  in 
judicial  consideration,  depend  on  the  proportion 
which  the  public  interest  bears  to  private  interest" 
(Spring  vs.  Russell,  7  Maine,  245.) 

The  idea  advanced  by  Judge  Cooley,  that  rail- 
roads, if  owned  and  operated  by  the  Government, 
are  public  m  es,  but  if  owned  and  operated  by  pri- 
vate individuals  or  corporations,  are  not,  is  not 
founded  in  reason.  The  fallacy  of  the  distinc- 
tion is  apparent.  It  may  be  exposed  by  reference 
to  the  status  of  ordinary  or  unimproved  high- 
ways, the  title  to  which  is  vested  in  the  owners 
of  the  adjoining  lands;  but  no  one  has  yet  affirmed 
that  for  that  reason  such  highways  are  private 
uses.  When  Judge  Cooley  admits  that  the  State 
of  Michigan  did  not  violate  the  Constitution  in 
undertaking  the  construction  of  the  Michigan 
Central  and  Michigan  Southern  Railroads,  that  is 
to  say,  did  constitutionally  exercise  the  power  of 
taxation  in  constructing  them,  and  yet,  in  the 
same  breath,  affirms  that  those  roads  became  mere 
private  uses  the  moment  that  the  title  to  them 
passed  to -the  vendees  of  the  State,  he  falls  into 
the  error  of  confounding  the  means  by  which  the 
end  is  accomplished  with  the  end  itself.  Judge 
Cooley,  and  those  who  think  with  him,  will  admit 
that  the  canals  and  railroads  which  were  con- 


41 

s 

structed,  and  for  a  time,  operated,  by  the  State  of 
Pensylvania,  were  during  that  time  public  uses 
for  which  the  power  of  taxation  could  be  consti- 
tutionally exercised.  If,  while  in  that  condition, 
they  were  public  uses,  it  must  have  been  because 
they  responded  to  the  exigencies  and  necessities 
of  the  public ;  did  they  do  less  when  they  had 
passed  from  the  ownership  of  the  State  to  that  of 
her  vendees  ?  On  the  contrary,  was  not  their 
relation  to  the  public  precisely  what  it  had  been 
before  the  transfer?  Before  the  transfer,  the 
public  enjoyed  the  use  of  them  upon  payment  to 
the  State  of  certain  fares  and  freights,  or  tolls. 
After  the  transfer  they  enjoyed  the  same  rights, 
upon  the  payment  of  fares  and  freights  to  the 
corporations.  There  was,  then,  no  change  in  the 
end  for  which  they  had  been  constructed,  but  only 
a  change  in  the  instrumentalities  by  which  the  end 
was  to  be  attained.  The  interest  of  the  public  in 
them  remained  wholly  unaffected  by  the  transfer, 
and,  whether  the  public  have  a  direct  interest 
being  the  acknowledged  test  whether  a  use  be 
public  or  private,  it  must  inevitably  follow,  that 
if  they  were  public  uses  before  the  transfer,  they 
remained,  for  the  same  reason,  public  uses  after 
the  transfer  had  taken  place. 

Nothing  can  be  more  illogical  than  to  argue 

that  because  the  Government  wisely  sees  proper 
6 


42 

to  avail  itself  of  private  capital  in  the  perform- 
ance of  its  acknowledged  obligation  to  the  peo- 
ple to  provide  them  with  the  most  improved  ways 
of  travel  and  transportation,  the  interest  of  the 
public  in  such  ways  has  become  in  anywise  di- 
minished thereby,  or  that  such  ways  have  become 
any  the  less  of  public  concern,  or  less  subservi- 
ent to  the  convenience  and  necessities  of  the  peo- 
ple. Nor  is  it  less  illogical  to  argue  that  the 
Government  cannot  use  the  private  capital  which 
thus  comes  to  its  aid  if  the  latter  proves  inade- 
quate to  the  undertaking.  It  would  seem  to  be 
incontrovertible  that  if  the  Government  may  sup- 
ply all  the  capital  required  for  the  construction 
of  a  given  railroad,  it  may  do  less  by  supplying  a 
part  only.  Suppose  a  railroad  is  demanded  by 
the  public  necessities,  between  two  given  points, 
no  one  contends  in  the  absence  of  constitutional 
restrictions  that  the  Government  cannot  build  it 
by  the  exercise  of  the  taxing  power.  If  private 
capital  offers  to  build  it,  experience  teaches  that 
it  would  be  good  policy  on  the  part  of  the  Gov- 
ernment to  accept  the  offer.  But  suppose  pri- 
vate capital  hesitates — is  willing  to  assume  three- 
fourtlis  of  the  cost,  but  is  unwilling  to  assume  it 
all,  who,  in  view  of  the  premises,  is  prepared  to 
maintain  that  the  Government  may  contribute  the 
whole  but  cannot  the  part  ?  Such  an  absurd  posi- 
tion might  deprive  the  places  in  question  of  all 


railroad  facilities  until  by  slower  processes  their 
wealth  and  population  assumes  proportions  which 
will  embolden  private  capital  to  take  upon  itself 
the  whole  burden.  The  effect  of  such  doctrines, 
if  they  are  sound,  will  be  most  disastrous. 

They  will  stay  the  development  of  the  country 
for  half  a  century,  or  entail  upon  the  Govern- 
ment the  necessity  of  inaugurating  a  system  of 
internal  improvements  solely  at  the  public  ex- 
pense, which,  as  all  experience  teaches,  is  to  be 
avoided  whenever  private  capital  is  willing  to 
assume  the  burden.  Instead  of  such  a  course, 
the  true  policy  is  to  aid  and  encourage  private 
capital,  as  this  legislation  was  designed  to  do,  in 
assuming  these  burdens  of  the  Government.  A 
contrary  course,  as  declared  by  Mill  in  his  great 
work  on  Liberty,  might  lead  to  most  disastrous 
consequences:  "If  the  roads,  the  railways,  the 
banks,  the  insurance  companies,  the  great  joint* 
stock  companies,  the  universities,  and  the  public 
charities,  were  all  of  them  branches  of  the  Gov- 
ernment— if  the  employees  of  all  these  different 
enterprises  were  appointed  and  paid  by  the  Gov- 
ernment, and  looked  to  the  Government  for  every 
rise  in  life — not  all  the  freedom  of  the  press,  and 
popular  Constitutions  of  the  Legislature,  would 
make  this  or  any  other  country  free  otherwise 
than  in  name." 


44 

PUBLIC  USE  A  LEGISLATIVE  QUESTION. 

The  power  exercised  by  American  Courts  of 
annulling  legislative-  Acts  on  the  ground  of  their 
supposed  repugnancy  to    some  provision  of  the 
Constitution  is  anomalous.      The  power,  it  is  be- 
lieved,   exists    nowhere    except   in   the    United 
States;  but  even  under  our  form  of  Government 
there  are  a  variety  of  questions  upon  which  the 
judgment  sometimes  of  the  law-making  power, 
and    sometimes  of  the  executive,  is   necessarily 
conclusive.     The  Courts,  for  example,  cannot  de- 
termine what  the  letter  of  the  Constitution  is — 
they  can  only  read  and  interpret.       (Luther  vs. 
JBorden,  7  How.  U.  S.  R.  1.)      They  cannot  deter- 
mine whether  a  political  contingency  has  arisen 
which  alone  justifies  special  action  on  the  part  of 
the  Legislature,   or  whether  a  state  of  war  or  in- 
surrection exists.      (People   vs,  Pacheco,    27  Cal. 
175;  Martin   vs.  Mott,  12  Wheaton,   19.)      They 
cannot  determine  what  Acts  are  mischievous  and 
shall  be  prohibited  as   criminal    (ex-parte  Smith 
and   Keating.    38    Cal.    707);    and   generally  all 
questions  of  necessity,  expediency,   and   policy, 
are  beyond  the  reach  of  the  Judiciary.     What 
will  subserve  the  interests  of  the  public,  on  the 
score  of  legislation,   rests  with  the  Legislature. 
The  general  power  to  look  after  the  wants,  neces- 
sities, convenience,  and  general  welfare  and  pros- 


45 

perity  of  the  people,  is  vested  in  the  Legislature, 
and.  as  incident  to  its  exercise,  that  body  must 
judge  of  the  exigency  and  the  means  to  meet  it. 
What  concerns  the  public  rests  upon  their  judg- 
ment. What  is  a  public  use  under  the  power  of 
eminent  domain,  and  the  power  of  taxation,  is  a 
legislative  and  not  a  judical  question. 

In  the  case  of  the  Commonwealth  vs.  Bruel  (4 
Pick.  460),  it  was  claimed  that  the  Legislature 
had  no  power  to  obstruct  a  navigable  stream  by 
granting  the  right  to  a  private  individual  to 
bridge  it,  'because  the  bridge  was  not  needed  by  the 
public.  The  Court  said: 

"  But  it  is  said  that  this  grant  was  made  upon  the  peti- 
tion and  for  the  sole  benefit  of  an  individual,  and  was  not 
needed  for  the  accommodation  of  the  public.  It  is  doubt* 
less  true,  that  the  leading  motive  of  the  defendant  in  erect- 
ing the  bridge  was  private  profit.  And  so  almost  all  other 
enterprises,  many  of  which  have  resulted'  in  great  public 
improvements,  have  originated  in  motives  of  private  gain* 
It  is  also  true,  that  others,  as  well  as  the  proprietors,  may 
have  occasion  to  go  upon  the  island.  To  such,  the  bridge 
is  an  accommodation.  Whether  so  man}''  are  thus  accom- 
modated that  it  may  be  said  to  be  of  common  convenience, 
is  a  question  which  it  was  the  province  of  the  Legislature  to  de- 
termine, and  which  may  be  presumed  to  have  been  correctly 
determined.  We  can  therefore  see  no  valid  objection  to 
the  constitutionality  of  this  grant." 

In  Spring  vs.  Russell  (7  Maine,  229),  the  ques- 
tion was  whether  an  Act  of  the  Legislature  cre- 
ating a  corporation,  and  authorizing  it  to  turn  the 


4G 

course  of  a  public  n  ivigable  stream,  and  to  take 
private  property  for  that  purpose,  was  constitu- 
tional. The  Constitution  of  the  State  contained 
this  clause:  u  Whenever  the  public  exigencies  re- 
quire that  the  property  of  any  individual  shall  be 
appropriated  to  public  use,  he  shall  receive  a  rea- 
sonable compensation  therefor."  The  Court  said: 

"Under  the  above-mentioned  limitations,  it  is  the  unques- 
tioned province  of  the  Legislature  to  determine  as  to  the 
wisdom  and  expediency  of  a  law,  and  how  far  the  public 
interest  is  concerned  (if  in  any  degree),  and  may  properly  be 
influential  in  the  enactment  of  a  law  directly  operating  on  pri- 
vate property.  *  *  *  We  apprehend  that  the  question 
of  constitutionality  does  not,  in  judicial  consideration,  de- 
pend on  the  proportion  which  the  public  interest  bears  to 
private  interest,  in  the  application  of  the  restrictive  princi- 
ple on  which  the  plaintiff's  counsel  relies." 

In  the  case  of  the  Boston  Water-Power  Co.  vs. 
Boston  and  Worcester  Railroad  Corporation  (23 
Pick.  394),  it  was  held  that  the  necessity  for  a 
railroad  in  a  given  locality  was  a  legislative  ques- 
tion. 

Said  Chancellor  Walworth,  in  Beekman  vs.  The 
Saratoga  and  Schenectady  Railroad  Company  (3 
Paige,  73): 

'•If  the  public  interest  can  be  in  any  way  promoted  by 
the  taking  of  private  property,  it  must  rest  with  the  wisdom 
of  the  Legislature  to  determine  whether  the  benefit  to  the 
public  will  be  of  sufficient  importance  to  render  it  expe- 
dient for  them  to  exercise  the  right  of  eminent  domain." 


47 

To  the  same  effect  is  the  opinion  of  Chief  Jus- 
tice Nelson,  in  Taylor  vs.  Porter  (4  Hill,  151). 
Van  Home  vs.  Dorance,  2  Dallas,  312. 
Dunn  vs.  The  City  Council  Hrp.  Rep.  189. 
De  Varaigne  vs.  Fox,  2  Blatchford,  95. 
Charles  River  Bridge  vs.  Warren  River  Bridge, 
7  Pick.  453. 

The  doctrine  of  this  Court  is  to  the  same  effect. 

In  the  case  of  Blanding  vs.  Burr,  13  Cal.  350, 
Chief  Justice  Field  said : 

"There  is  no  restriction  as  to  the  amount  of  the  tax  which 
may  be  imposed,   or  the  purpose  to  which  the  money  received 
shall  be  applied.      The   security   against   the  abuse  of  the 
power  of  the  Legislature  is  to  bo  found  in  the  wisdom  and 
sense  of  justice  of  its  members,  and  their  relation  to  their 
constituents.      It  can   impose  a  general  tax   upon  all  the 
property  of   the  State,  or  a  local  tax  upon  the  property  of 
particular   political    subdivisions,  as  counties,   cities   and 
towns.      The  cases  in  which  its  power  shall  bo  exercised, 
and  the  extent  to  which   the   taxation   in  M  particular  in- 
stance shall  be  carried,  are  matters  exclusively  within  its  own 
judgment,  subject  to  the  qualifications  of  equality  and  uni- 
formity in  the  assessment.         *  It  may  ap- 
propriate   them   (moneys    raised  by  taxation)   to    claims 
which  have  no  legal    obligation,   and    are  founded  only  in 
justice.     Of  the  propriety  of  the  appropriation,  as  of  the 
expediency  of  the  taxation,  IT  is  THE  SOLE  JUDGE.     With  the 
exercise  of  the  power  in  either  case,  the  judiciary  cannot  in- 
terfere'' 

This  case  was  followed  in  the  case  of  the  Napa 
Valley  Railroad  Company  vs.  Napa  County,  30 
Cal.  438. 


48 

In  the  case  of  Beats  vs.  Amador  County,  35  Cal. 
638,  Justice  Sprague  said : 

"The  legislative  department  of  our  State  Government 
is  not,  like  the  Congress  of  the  United  States,  restricted  in 
its  sphere  of  action  by  a  fixed  chart  of  delegated  powers. 
Its  power  represents  the  independent  sovereignty  of  the 
people  of  the  State,  and  is  supreme  and  unlimited  in  all 
legitimate  subject  matters  of  legislation,  and  controlled 
only  by  such  restrictions  as  are  imposed  by  the  organic 
law  of  the  State. 

"The  only  restriction  imposed  upon  legislative  discretion  in 
the  matter  of  taxation  by  our  Constitution  is,  that  it  shall 
be  equal  and  uniform,  and  in  proportion  to  the  value  of 
the  property  taxed  ;  and  this,  it  will  be  observed,  is  not  a 
restriction  of  the  absolute  power  to  impose  taxation,  but 
simply  a  restriction  upon  the  mode  of  its  exercise.  There 
being,  then,  no  constitutional  check  or  limitation  of  the 
legislative  power  to  impose  the  tax,  it  would  seem  to  follow 
necessarily  that  if  the  mode  of  its  exercise,  as  provided  by 
the  Act,  conforms  to  and  is  not  in  conflict  with  the  consti- 
tutional restriction,  the  law  is  binding  and  obligatory,  and 
beyond  the  control  of  the  judicial  department  of  the  State 
Government." 

Here  the  whole  scope  and  extent  of  the  power 
of  the  judiciary  over  the  subject  of  taxation  is 
clearly  stated.  The  courts  may  review  the  Acts 
of  the  Legislature  so  far  as  to  determine  whether 
the  tax  has  been,  or  is  to  be,  assessed  equally  and 
uniformly,  and  in  proportion  to  the  value  of  the 
property  taxed.  Beyond  that  the  judicial  depart- 
ment has  no  control,  and  the  power  of  the  Legis- 
lature is  absolute.  The  soundness  of  this  view 
cannot  be  impeached,  and  it  leaves  the  object  for 


49 

which  the  power  of  taxation  may  be  exercised, 
where  it  ought  to  be,  wholly  within  the  judgment 
and  discretion  of  the  Legislature,  with  no  power  of 
review  in  the  courts. 

In  the  case  of  the  People  vs.  San  Francisco,  36 
Gal.  601,  Justice  Crockett  said: 

"  It  is  not  our  province  to  discuss  the  expediency  or  wis- 
dom of  a  Legislative  Act.  Our  sole  duty  is,  by  applying 
just  rules  of  construction  to  ascertain  the  true  intent  of 
the  Legislature,  and  carry  it  into  effect.  If  the  Act  is  un- 
wise or  oppressive  in  its  provisions,  the  fault  is  with  the 
Legislature,  and  we  have  no  power  to  remedy  the  grievance." 

In  the  case  of  Sherman  vs.  jBuick<  32  Cal.  253 
this  Court  has  said : 

"  Whether  a  given  road  will  subserve  the  public  need  or 
convenience  is  a  question  for  the  Government  alone  to  de- 
termine. The  courts  have  nothing  to  do  with  it.  *  * 

*  The  ultimate  decision  of  the  question,  whether  a 
given  road  will  subserve  the  public  need  or  convenience, 
must  rest  somewhere,  and  it  is  wisely  left  for  the  Legisla- 
ture to  determine  in  such  manner  as  they  may  provide." 

To  hold  otherwise  would  be  to  place  political 
power  in  the  hands  of  the  judiciary,  and  strip  our 
system  of  Government  of  its  popular  form.  To 
hold  otherwise  would  be  to  hold  that  this  Court, 
consisting  of  five  persons  only,  is  better  informed 
as  to  the  wants  and  necessities  of  the  public  than 
the  one  hundred  and  twenty  who  compose  the 
legislative  department,  and  may  therefore  over- 
ride the  judgment  of  that  body  on  all  questions 
7 


50 

affecting  the  interests  of  the  public.  Upon  all 
questions  affecting  the  purposes  and  objects  for 
which  the  powers  of  eminent  domain  and  taxation 
may,  or  shall  be  exercised,  the  judgment  of  the 
law-making  power  is  and  ought  to  be  conclusive. 
The  arguments  which  have  been  made  in  this  case 
would  have  been  more  appropriate  if  they  had 
been  made  before  the  Legislature,  for  the  Halls 
of  Legislation,  and  not  the  Halls  of  Justice  are 
the  proper  places  to  discuss  what  are  public 
wants  and  necessities — what  are  public  exigencies, 
and  what  are  public  uses.  There  the  power  to 
provide  for  them  is  lodged ;  and,  ex  necessitate  rei, 
the  incidental  power  to  adjudge  what  they  are. 


PRECEDENTS. 

Having  shown  that  the  power  of  taxation  is  a 
power  to  take  the  property  of  the  citizen  for  pub- 
lic use,  and  that  a  railroad  is  a  public  use,  the 
conclusion  is  inevitable — whether  the  question 
be  considered  from  a  legislative  or  judicial  stand- 
point— that  the  former  may  be  exercised  in  be- 
half of  the  latter,  which  is  the  ultimate  point  to 
be  established.  But  the  further  question  remains 
as  to  how  far  the  Courts  have  followed  this  argu- 
ment and  applied  its  conclusions  to  legislation  of 
this  character;  for  precedent  as  well  as  principle 
is  to  be  considered  in  the  discussion  of  legal 


51 

questions.  They  do  not  always  agree,  and,  some- 
times, on  grounds  of  public  policy,  the  former  is 
allowed  to  override  the  latter. 

This  legislation,  so  far  as  its  mode  of  working 
is  concerned,  has  been  of  two  kinds — first,  author- 
izing counties  and  cities  to  take  stock  in  railroads; 
and  second,  to  donate  their  bonds.  The  validity 
of  the  first  kind  has  been  declared  by  the  highest 
Courts  of  twenty-one  States,  and  also  by  the  Su- 
preme Court  of  the  United  States.  (See  McCon- 
nell's  briefs  filed  in  this  case.)  Only  three  States, 
Iowa,  Wisconsin  and  Michigan,  have  declared 
against  its  validity;  and  recently  Iowa,  upon  a 
sober  second  thought,  has  taken  back  the  decla- 
ration, leaving  only  two  States  who  have  repu- 
diated this  legislation,  against  twenty-two  which 
now  sustain  it.  It  may  well  be  doubted  if  any 
legal  principle  can  be  found  in  respect  to  which 
such  an  unanimity  of  judicial  opinion  can  be 
shown.  Of  a  question  so  situated,  a  rational  con- 
flict of  authority  cannot  be  affirmed. 

Against  the  validity  of  donations  there  have 
been,  of  a  late  date,  four  decisions:  one  in  New 
York,  one  in  Iowa,  one  in  Wisconsin,  and  one  in 
Michigan.  The  first  is  entitled  to  no  consider- 
ation as  a  precedent,  for  it  was  not  rendered  by  a 
Court  of  last  resort.  The  second,  as  just  stated, 
has  since  been  overruled  by  the  same  Court. 


52 

This  leaves  two  States,  Wisconsin  and  Michigan/ 
standing  solitary  and  alone  in  opposition  to  this 
species  of  legislation.      The    Supreme   Court  of 
Wisconsin  is  composed  of  three  Judges,   one  of 
whom  dissented.     The  Supreme  Court  of  Michi- 
gan is  composed  of  four  Judges,  one  of  whom  dis- 
sented.     So  the  great  industry  of  the  Attorney- 
General  and  his  coadjutors  has  found,  in  all  the 
.civilized  world,  only  five  Judges  who  have  had 
the  effrontery  to  outrage  reason  and  precedent, 
by  declaring  this  legislation  unconstitutional.     In 
the  language  of  the  Supreme  Court  of  the  United 
States,'  "  they  stand  out  in  unenviable  solitude 
and  notoriety."     Their  decisions  can  be  account- 
ed for  in  no  way  unless  it  be  that  their  judgments 
were  warped  by  outside  influences.      It  may  be 
that  the  party  whip  was  cracked  over  their  heads 
by  the  Executive  of  the   State — it  may  be  that 
newspaper  editors,   who  know  a  little  of  every- 
thing and  not  much  of  anything,   dictated  their 
judgments,    or   reminded   them    that   those  very 
profound  jurists,  the  people,  were  expecting  them 
to  decide  as  they  did.      6ut  be  the  cause  what  it 
may,  their  judgments  are  opposed,  as  I  have  at- 
tempted to  show,  to  both  principle  and  precedent. 
Yet  Counsel  upon  the  other  side  have  gravely 
assured  this  Court,  that  the  current  of  decisions, 
upon  this  subject,  is  turning.     Counsel  have  mis- 


53 

taken  a  slight  crevasse  for  the  true  channel,  and 
from  that,  the  judicial  waters, 

"  With  the  hollow  roar 
Of  tides  receding  from  th'  insulted  shore," 

have  already  commenced  to  disappear.  True,  like 
the  waters  of  the  Mississippi  when  the  Storm 
King  breathes  upon  them,  they  have  broken 
through  their  banks,  under  the  pressure  of  popu- 
lar clamor;  but  like  them,  when  the  storm  has 
passed,  they  are  now  returning  to  their  old  chan- 
nel, ubi  currere  solehat.  Iowa  has  commenced  to  fill 
up  the  breach,  and  Wisconsin  and  Michigan  may 
yet  join  her,  when  the  panic  under  which  they 
have  been  laboring  shall  have  ceased. 


No  DISTINCTION   BETWEEN   SUBSCRIPTIONS    AND  DO- 
NATIONS. 

The  Courts  of  Wisconsin  and  Michigan  have 
not  undertaken  to  distinguish  between  sub- 
scriptions and  donations — have  not  held  that 
the  former  are  valid  and  the  latter  not.  They 
have  taken  the  broad  ground  that  both  are 
equally  outside  of  the  taxing  power.  Yet  fear- 
ing, evidently,  that  this  Court,  in  view  of  its 
course  heretofore  in  relation  to  subscriptions, 
might  hold  them  valid,  on  the  ground  of  stare  de- 
clsis  if  no  other,  counsel  have  endeavored  to  dis- 
tinguish between  them  and  donations — maintain- 


54 

ing  that  although  the  former  may  be  valid,  the 
latter  may  not.  In  this  effort  they  are  placed  in 
the  awkward  position  of  assailing,  in  part,  the 
only  cases  upon  which  they  rely  for  support,  in 
other  respects,  for  as  just  stated  those  cases  are 
not  based,  in  any  respect,  upon  any  supposed  dis- 
tinction between  subscriptions  and  donations. 
No  Court,  so  far  as  I  am  advised,  has  held  that 
subscriptions  are  valid  and  that  donations  are 
not.  Such  an  attack  upon  their  friends  is  calcu- 
lated to  weaken  their  cause,  but  be  the  conse- 
quence upon  their  own  heads. 

The  argument  in  support  of  this  alleged  dis- 
tinction is  this:  that  in  the  case  of  a  subscription 
a  supposed  equivalent  is  returned  to  the  tax- 
payer in  stock,  whereas  in  the  case  of  a  donation 
he  receives  no  return.  Neither  is  true  as  stated. 
The  tax-payer  does  not  receive  stock  in  return; 
the  county  or  city,  as  the  case  may  be,  receives  it, 
and  the  only  benefit  which  the  tax-payer  receives 
from  the  transaction,  is  not  an  individual  or  .sev- 
eral benefit,  but  a  benefit  which  is  common  to 
himself  and  all  the  other  members  of  the  commu- 
nity. In  the  case  of  a  donation,  the  tax-payer 
receives  his  share  of  the  common  benefit  which 
flows  from  the  construction  of  the  road.  The 
only  difference,  then,  is  in  the  amount  of  the 
common  benefit  returned.  That  there  is  this  dif- 
ference I  admit.  But  a  difference  in  the  qu-an- 


55 

turn  of  benefit  received,  it  is  obvious  cannot  be 
made  the  test  as  to  whether  the  power  to  do  the 
act  exists  or  not.  There  being  a  benefit  in  each 
case,  differing  only  in  degree,  no  distinction, 
on  the  score  of  power  between  the  two  can  be 
maintained  which  is  founded  upon  the  question 
of  benefit.  The  fact  that  the  one  results  in  a 
greater  benefit  than  the  other?  is,  therefore,  a 
mere  difference  in  circumstance,  and  not  a  distinc- 
tion in  principle.  That  no  such  distinction  can 
be  admitted  must  be  apparent,  when  it  is  remem- 
bered that  we  are  dealing  with  a  question  of 
power  and  not  of  contract — a  power  which  is  sov- 
ereign and  which  acts  on  the  citizen  not  ly  his 
consent  but  against  it. 

The  idea,  which  is  one  of  the  corner-stones 
upon  which  the  opponents  of  this  legislation 
build,  that  no  money  can  be  taken  from  the  citi- 
zen by  taxation  for  any  purpose,  or  object,  which 
will  make  no  direct  return  of  individual  benefit, 
however  captivating  and  plausible  to  the  popular 
mind,  is  altogether  deceptive.  It  is  always  true 
in  theory,  but  so  far  as  perception  goes  frequently 
false  in  fact.  All  taxes  levied  for  the  support  of 
the  public  schools,  and  all  charitable  or  eleemosy- 
nary institutions  are  illustrations.  The  tax- 
payer who  has  no  children  to  educate  is  never- 
theless taxed  to  pay  for  the  education  of  his 
neighbors'!  The  tax-payer  who  has  no  use  for 


56 

hospitals,  asylums  or  almshouses,  and  derives 
from  neither  a  tangible  individual  benefit  is  nev- 
ertheless taxed  for  their  support.  That  such  an 
exercise  of  the  taxing  power  is  unconstitutional 
however,  no  one  will  pretend;  yet  it  is,  if  the 
logic  by  which  the  invalidity  of  this  legislation  is 
sought  to  be  maintained,  is  sound.  But  it  is  a 
mistake  to  suppose,  even  in  such  cases,  that  no 
benefit  is  realized.  Though  not  in  a  certain  sense 
perceptible,  a  tangible  or  common  and,  therefore, 
personal  benefit  is  nevertheless  received,  in  the 
general  advancement  of  education,  civilization, 
science,  art,  and  everything  else  which  constitutes 
an  element  in  political,  moral  or  social  progress. 


DECISIONS  IN  THIS  STATE. 

It  is  said,  by  the  opponents  of  this  legislation, 
that  the  decisions  of  this  Court  in  relation  to  this 
subject  are  conflicting.  I  deny  the  proposition. 
The  first  case  which  had  any  bearing  upon  the 
question  was  Lowe  vs.  The  Mayor  etc.  of  the  City  of 
Marysville  (5  Cal.  214.)  The  question  presented 
was  whether  the  city  of  Marysville  could  take 
stock  in  the  4i  Citizens'  Steam  Navigation  Com- 
pany." There  had  been  no  Act  passed  by  the 
Legislature,  like  those  now  being  considered,  au- 
thorizing the  city  to  take  stock  in  that,  or  any 
other  company,  and  the  existence  of  the  power 


57 

turned  upon   the  construction   of  the   following 
clause  in  the  city  charter: 

u  If  the  Common  Council  desire  to  take  stock 
in  any  public  improvement,  or  loan  the  credit  of 
the  city  to  any  improvement,  or  effect  a  loan  for 
any  purpose,  for  a  sum  exceeding  five  thousand 
dollars,  they  shall  submit  a  proposition  for  taking 
such  stock,  or  effecting  such  loan,  stating  the 
amount  of  loan  or  stock,  to  the  electors  of  the 
city  of  Marysville,  at  a  special  election  to  be  held 
for  that  purpose,  upon  the  Common  Council 
giving  twenty  days  published  notice  of  the  same; 
and  if  two-thirds  of  the  electors  vote  in  favor  of 
such  proposition,  or  propositions,  the  Common 
Council  shall  have  power  to  effect  such  loan  or 
take  such  stock — but  not  otherwise — and  pledge 
the  faith  of  the  city  for  such  loan  or  stock." 

In  respect  to  this  statute  two  points  were  pre- 
sented by  counsel  for  the  decision  of  the  Court: 

First — Whether  it  was  intended  by  this  statute 
to  authorize  the  city  to  take  stock  in  or  to  loan 
its  credit  to  other  than  such  public  improvements 
as  are  of  a  strictly  municipal  character — such  as 
water  works,  gas  works,  alms  houses,  hospitals, 
etc. 

Second — If  it  did,  whether  it  was  not  uncon- 
stitutional. 

8 


58 

The  Court  held  that  it  was  the  intention  of  the 
statute  to  authorize  the  city  to  take  stock  in  or 
loan  its  credit  only  to  such  public  improvements 
as  were  of  a  strictly  municipal  character — that  is 
to  say,  such  improvements  as  are  indispensable  to 
the  wants  of  the  city,  such  as  water  works,  gas 
works,  etc. 

Having  come  to  this  conclusion,  it  is  obvious 
there  was  no  occasion  to  consider  the  second 
point,  yet  this  Court  took  it  up  and  decided  in 
effect,  that  if  there  had  been,  which  there  was 
not,  any  law  authorizing  the  city  to  take 
stock  in  the  "  Citizens'  Steam  Navigation  Com- 
pany," it  would  have  been  unconstitutional.  It 
is  not  necessary  to  say  that  a  question  decided 
under  such  circumstances  is  not  decided  at  all, 
and  the  decision  is  of  no  force,  as  such,  and  can 
only  be  referred  to  for  what  it  may  be  worth  as 
an  argument,  not  as  a  precedent  which  is  binding 
upon  this  Court.  So  we  find  that  in  the  next 
case  which  came,  before  the  Court,  which  was  the 
case  of  a  special  statute  authorizing  the  county 
of  Yuba  to  take  stock  in  a  railroad,  this  case, 
although  cited  by  counsel  as  an  authority  against 
the  constitutionality  of  the  latter  Act,  is  not 
even  referred  to  in  the  opinion  of  the  Court. 
(Pattison  vs.  Board  of  Supervisors  of  Yuba  County, 
13  Gal.,  175.) 


69 

The  question  now  being  considered  caine  be- 
fore the  Court  for  the  first  time  in  the  case  last 
cited.  It  was  directly  involved  in  that  case  and 
the  decision  was  directly  in  favor  of  the  constitu- 
tionality of  this  character  of  legislation,  so  far 
as  it  relates  to  subscriptions.  From  that  time  to 
the  present  the  rule  has  never  been  departed 
from.  When  in  1864,  the  Court  was  reorganized 
under  the  amendments  to  the  Constitution  which 
took  effect  at  the  commencement  of  last  year, 
the  Judges  who  then  came  upon  the  bench  found 
that  their  predecessors  had  declared  such  legis- 
lation to  be  constitutional,  and  that  upon  the 
faith  of  that  decision  large  amounts  of  city  and 
county  bonds  had  been  issued,  and  that  to  over- 
turn the  rule  of  their  predecessors,  whether  it 
did  or  did  not  meet  with  their  approval,  would 
be  to  disregard  the  doctrine  of  stare  decisis  in  a 
case  where  every  consideration  required  its  ap- 
plication. They  accordingly  followed  the  rule 
adopted  by  their  predecessors  as  they  ought  to 
have  done.  Yet  for  this  discharge  of  what  was 
obviously  their  judicial  duty,  they  have  been  ac- 
cused of  yielding  to  outside  influence  by  a  gentle- 
man now  holding  a  prominent  position  in  the 
government  of  the  State,  who  has  found  in  the 
circumstance  that  they  did  not  overturn  a  rule 
which  had  become  the  sole  foundation  of  large 
pecuniary  interests,  cause  to  congratulate  the 


GO 

country  because  four  of  their  number  have  re- 
tired from  the  Bench.  This  gentleman,  then,  as 
counsel,  advocated  .the  same  doctrine  which  the 
Attorney  General  now  advocates.  Is  his  evident 
hostility  to  those  gentlemen  due  in  any  measure 
to  the  fact  that  his  logic  and  eloquence  failed  to 
convert  them  to  his  faith  ?  Did  his  eyes  upon  this 
subject  become  so  jaundiced  while  he  occupied 
the  position  of  counsel  that  they  are  still  dis- 
eased upon  this  question?  Be  that  as  it  may,  it 
is  not  out  of  place  for  me,  who  knew  them  so  in- 
timately in  all  their  judicial  relations,  to  say,  of 
three  of  them,  that  though  they  were  neither  of 
them  deacons  of  a  church,  yet  were  they  in  all 
the  qualities  of  an  honest  man  the  full  peers  of 
their  assailant,  and  in  all  the  characteristics  of  a 
lawyer  they  were  his  superiors,  for  they  consid- 
ered it  to  be  their  duty  as  Judges  to  read  the 
Constitution  and  the  laws  as  they  had  been  writ- 
ten, and  not  as  they  might  conceive  they  ought 
to  have  been  written. 

This  Court  has  never  had  occasion  to  pass  upon 
the  constitutionality  of  laws  authorizing  counties 
and  cities  to  aid  in  the  construction  of  railroads 
by  donations,  so-called,  and  the  question  whether 
any  distinction  can  be  made  on  the  score  of  prin- 
ciple between  donations  and  subscriptions  is 
therefore  opfcn. 


61 

STARE    DECISIS. 

There  is  one  other  legal  principle  to  which  ref- 
erence must  be  made,  before  all  the  points   will 
have  been  touched  upon,  which  are  involved  in 
this  discussion.     The  principle  to   which  I   refer 
is  stare  decisis ;  or  the  rule  by  which  all  Courts  are 
governed  in  respect  to  their  previous  decisions. 
For  obvious  reasons,  uniformity  of  ruling  upon 
the  same  question,  on  the  part  of  the  Courts,  is 
demanded  upon  grounds  of  public  policy.     This 
rule  applies  with  binding  force  to   all  questions 
affecting  the  rights  of  property.     Were  Courts  to 
overrule  themselves  upon  questions  of  that  char- 
acter, there  would  be  no  security  for  property — 
men    could  never  invest  their  money  with  any 
certainty  that  they  would  be  allowed  to  enjoy 
the  benefit    or  advantage  to  be  derived  from  their 
investment.     Hence  in  such  cases,  although  the 
Courts  may  become  satisfied,   that  a  wiser  and 
better  rule  might  have  been  adopted  in  the  first 
instance,  yet  they  adhere  to  it,  because  a  depar- 
ture  from   it   would    retroact  and    unsettle  the 
rights  of  property  acquired  under  the  previous 
ruling.     The  present  subject  affords  an  apt  illus- 
tration  of    this  principle.     It  is  estimated  that 
more  than  three  millions  of  county  and  city  bonds 
have    been  issued  and  have  been  bought  as  an 
investment  by  private  parties,  on  the  strength   of 
the  decisions  of  this  Court,  that  the  laws  under 


62 

which  they  were  issued  were  constitutional.  Were 
this  Court  now  to  adopt  a  contrary  rule,  all  these 
bonds  would  become  as  worthless  as  the  paper 
upon  which  they  are  printed.  Consequences  like 
this  must  have,  as  they  ought  to  have,  a  control- 
ling weight  with  the  Courts,  and  they  have  stead* 
ily  refused  in  all  such  cases  to  disturb  their  previous 
decisions.  A  change  in  the  Constitution,  or  the 
law,  as  the  case  may  be,  is  followed  by  no  such 
mischievous  consequences,  and  the  latter  is  there- 
fore declared  to  be  the  only  remedy. 


THE  WISCONSIN  AND  MICHIGAN  CASES. 

It  may  be  thought  that  some  more  direct  no- 
tice, should  be  given  to  the  recent  decisions  in 
Wisconsin  and  Michigan.  But  it  is  sufficient  to 
say  that  they  are  but  two  against  twenty-three, 
and  are  therefore  entitled  to  no  consideration  as 
precedents.  So  far  as  they  represent  a  principle, 
they  are  opposed  to  my  position,  and  in  fortify- 
ing that  I  have  necessarily  undertaken  to  expose 
their  fallacies.  The  vice,  in  those  cases,  lies  in 
the  fact  that  they  proceed  upon  the  theory  that 
railroads  are  private  enterprises,  and  not  public  im- 
provements, and  therefore  that  they  cannot  be 
constitutionally  aided  by  taxation.  That  this 
theory  is  wrong,  that  it  is  contradicted  by  reason 


63 

and  an  overwhelming  array  of  legislative  and  ju- 
dicial authorities  I  have  attempted  to  show.  In  my 
judgment  those  Courts,  in  their  zeal  to  prevent 
what  the}'  conceived  to  be  unwise  legislation,  mis- 
took expediency  for  principle,  and  founded  their 
judgment  on  the  former  and  not  upon  the  latter, 
forgetting  that  questions  of  policy  are  for  the 
Legislature  and  not  the  Judiciary,  and  that  the 
latter  can  never  be  held  responsible  for  the  un- 
wise acts  of  the  former.  Judges  are  but  men,  and 
like  other  men  are  liable  to  err.  I  have  never 
been  able  to  discover  any  substantial  difference 
between  a  good  lawyer  on  the  bench  and  a  good 
lawyer  off  the  bench,  except  that  the  former  is 
able,  by  reason  of  his  position,  to  tell  you  what 
the  law  is,  while  the  latter,  by  reason  of  his  posi- 
tion, can  only  tell  you  what  he  thinks  it  is.  Nor 
should  we  be  surprised  to  sometimes  find  them 
wrong,  and  when  we  do,  or  think  we  do,  we 
should  not  hasten  to  account,  for  their  supposed 
error  by  charging  them  with  a  dishonest  purpose, 
or  seek  a  reversal  of  their  decisions  by  popular 
clamor,  or  by  notifying  them,  in  advance  of  their 
decision,  that  if  they  do  not  decide  in  a  particular 
way,  the  legal  profession,  as  well  as  those  eminent 
jurists,  the  people  at  large,  will  be  thrown  off 
their  balance  with  astonishment  and  surprise.  It 
is  unreasonable  to  suppose  that  judges  can  escape 
error,  when  we  remember  that  even  those  filling 


(14 

other  responsible  positions  —  men  of  supposed 
learning  and  ability,  are  sometimes  seized  with  an 
insane  desire  to  startle  the  world  with  the  an- 
nouncement of  some  hitherto  undiscovered  truth, 
or  become  so  blinded  by  an  unsuccessful  opposi- 
tion to  the  progress  of  civil  liberty,  that  they  are 
ready  and  willing,  in  season  and  out  of  season,  to 
maintain  that  ''the  Federal  Constitution  can  be 
amended,  but  cannot  be  changed,"  or  that  t6  Ne- 
groes are  entitled  to  vote  but  cannot  be  allowed  to 
exercise  the  right,  until  Congress  has  passed  a 
law,  by  which  every  person  who  undertakes  to 
prevent  it,  can  be  sent  to  the  penitentiary." 

My  conclusion  is  that  railroads  are  public  high- 
ways, and  as  such  may  be  aided  and  fostered  by 
the  Legislature,  at  the  public  expense,  through  the 
the  exercise  of  the  taxing  power. 

S.  W.  SANDERSON, 

For  the  S.  ?.  R.  R.  Co. 


